/ 


New  Jersey  equity  Reports. 


VOLUME  XXXIII. 


STEWART,  6. 


REPORTS 


CASES  DECIDED  IN 


THE  COURT  OF  CHANCERY, 


THE  PREROGATIVE  COURT, 


AND,  ON  APPEAL,  IN 


The  Court  of  Errors  and  Appeals, 


STATE  OF  NEW  JERSEY. 


JOHN  H.  STEWART    REPORXEa 


VOL.  VI. 


TKENTON,  N.  J.: 

W.  S.  Sharp,  Printer  and  Stereotyper. 


1881. 


y 


Entered,  according  to  act  of  Congress,  in  the  year  1881,  by 

JOHN  H.  STEWART, 

In  the  office  of  the  Librarian  of  Congress  at  Washington,  D.  O. 


CHANCELLOR 
DUKINQ  THE  PEKIOD  OF  THESE  EEPOETa 

Hon.  THEODORE  RUNYON. 


VICE-CHANCELLOE. 

Hon.  ABRAHAM  V.  VAN  FLEET. 


CLEEK  IN  CHANCEEY. 

HENRY  S.  LITTLE,  Esq. 


lUDGES  OF  THE  COURT  OF  ERRORS  AND  APPEALS. 


Hon. 


EX-OFFICnS  JUDGES. 

THEODORE  RUNYON,  Chancellor 
MERCER  BEASLEY,  Chief  Justice. 
DAVID  A.  DEPUE, 
BEXNET  VAX  SYCKEL, 
EDWARD  ^y.  SCUDDER, 
MAXXING  M.  KXAPP, 
JOXATHAX  DIXOX, 
ALFRED  REED, 
WILLIAM  J.  MAGIE, 
JOEL  PARKER. 


V 


Associate  Justices 

of  the 

Supreme  Court. 


JUDGES  SPECIALLY  APPOINTED. 

Hon.  EDMUXD  L.  B.  WALES, 
JOHX  CLEMEXT, 
FRAXCIS  S.  LATHROP, 
AMZI  DODD, 
CALEB  S.  GREEN, 
MARTIN  COLE. 


CLERK. 

HENRY  C.  KELSEY,  Esq. 


NOTE. 

This  volume  contains  the  opinions  delivered  in  the  Court  of 
Chancery  and  Prerogative  Court,  at  October,  1880,  and  Febru- 
ary, 1881,  Terms,  and  also  those  on  appeal,  in  the  Court  of 
Errors  and  Appeals,  at  November,  1880,  and  March,  1881, 
Terms. 

By  the  Chancellor's  direction,  the  opinions  in  the  following 
cases  have  not  been  published :  Weber  v.  Weber ;  Menagh  v. 
Sharp  ;  Coryell  v.  Moore. 


NEW  JERSEY   REPORTS, 


WITH  THEIR  ABBREVIATIONS. 


LAW  REPORTS. 

COXE,  1790-1795, 
PENNINGTON  (Pen.),  1806-1813, 
SOUTHARD  (South.),  1816-1820, 
HALSTED  (Hal.),  1821-1831, 
GREEN  (Gr.),  1831-1836,     . 
HARRISON  (Hare.),  1837-1842, 
SPENCER  (Spen.),  1842-1846,      . 
ZABRISKIE  (Zab.),  1847-1855, 
DUTCHER  (Dutch.),  1855-1862, 
VROOM  (Vr.),  1862- 


1  vol. 
2 
2 
7 
3 
4 
1 
4 
6 
13 


EQUITY  REPORTS. 

SAXTON  (Sax.),  1830-1832, 
GREEN  (Gr.  Ch.),  1838-1845, 
HALSTED  (Hal.  Ch.),  1845-1852,      . 
STOCKTON  (Stock.),  1852-1858,      . 
BEASLEY,  (Beas.),  1858-1861,     . 
McCARTER  (McCart.),  1861-1862, 
C.  E.  GREEN  (C.  E.  Gr.),  1863-1877, 
STEWART  (Stew.  Eq.),  1877- 


1  vol. 

3  " 

4  " 
3  " 

2  " 
2  " 

12  " 

6  " 


CASES  REPORTED. 


Abbott,  Hutchinson  v 379 

Adams  v.  Beideman 77 

Allen,  Williams  v 584 

Andrews's  Case 514 

Andrews,  Thorne  v 457 

Atha  V.  Jewell 417 

B. 

jr 

Bacon  v.  Bonham 614 

Balen,  Brown  v 469 

Bamber,  Mallet  v 253 

Bartles's  Case 45 

Bartlett,  Clement  v 43 

Beckman,  Hoboken  Bank  v 53 

Beideman,  Adams  v 77 

Belden  v.  Belden 94 

Bentley  v.  Heintze 405 

Bibby  v.  Bibby 56 

Blair,  Snyder  v 208 

Blakeley  v.  Blakeley 502 

Bohde  V.  Lawless 412 

Bonham,  Bacon  v 614 

Bonham  v.  Bonham 476 

Bouxquin  v.  Bourquin 7 

Boyd,  Pinnell  v 190,  600 

Brown  V.  Balen 469 

Brown  v.  Brown 650 

Budd  V.  Van  Orden 143,  564 

Burnet  Mfg.  Co.,  Mechanics  Bk.v.  486 

O. 

Camden  Horse  R.  K.  Co.  v.  Citi- 
zens Coach  Co 267 

Campbell,  Tompkins  v 362 


Carlton  v.  Vineland  Wine  Co 466 

Carpenter  v.  Hoboken 27 

Casper  v.  Walker 35 

Central   E.  R.   v.   Standard  Oil 

Co 127,  372 

Chetwood,  Wood  v 9 

Citizens'   Coach  Co.   v.   Camden 

HorseE.  R.  Co 267 

Qark,  Davis  v 579 

Clark,  O'Neill  v 444 

Clark,  Putnam  v 338 

Clement  v.  Bartlett 43 

Colt  V.  Miller 362 

Coates,  Murphy  v 424 

Conover  v.  Euckman 303 

Courter  v.  Howell SO 

Crater  V.  Welsh 362 

Crosland  v.  Hall HI 

Cubberly  V.  Cubberly 82 

Cummings  Car  Works,Woolsey  v.  432 

D. 

Danser  V.  Warwick 133 

Davis  V.  Clark 679 

Davis  V.  Howell 72 

Davis  V.Sullivan 569 

Del.,  L.  &  W.  E.  E.  v.  Oxford 

Iron  Co 192 

Dickerson,  Van  Doren  v 3S8 

Dickinson  V.  Trenton 63 

Doremus's  Case 234 

Doughty  V.  Somerville 1 

E. 

Eddy's  Case 574 

Eldridge,  Wanzer  v 511 


CASES  REPORTED. 


[33  Eq. 


Ellison  V.  Lindsley 258 

Emery  v.  Gordon 447 

Emson  v.  Lawrence 286 

F. 

Finev.  King 108 

Fisler,  Thompson  V 480 

Flaacke  v.  Jersey  City 57 

Foley  V.  Kirk 170 

Forraan,  Newark  Sav.  Inst,  v 436 

Freck,  Westervelt  v 451 

Freeholders  of  Warren,  Frome  v.  464 
Fi  ome  V.  Freeholders  of  Warren  464 
Fuller  V.  Fuller 583 

a. 

Gaines  v.  Green  Pond  Mining  Co.  603 

Gardner  v.  Jersey  City 622 

Gesner,  Tillotson  v 313 

Gill  V.  Eoberts 474 

God.lard,  Mat.  Life  Ins.  Co.  v....  482 

Gordon,  Emery  v 447 

Green  Pond  Mining  Co.,  Gaines  v.  603 


Haines,  Joyce  v 99 

Hall,  Crosland  V Ill 

Haiikinson  v.  Hankinson 66 

Haydock  v.  Haydock 494 

Heath,  Kise  v.  239 

Heintze,  Bentley  v 405 

Hendee  v.  Howe 92 

Hitchcock  V.  Midland  E.  E 86 

Hoag  V.  Sayre 552 

Hoboken,  Carpenter  v 80 

Hoboken  Bank  v.  Beckman 63 

Hoff,  Eed  .Jacket  Tribe  V 441 

Home  Ins.  Co.,  McGregor  v 181 

Howe,  Hendee  V 92 

Howell,  Courterv 80 

Howell,  Davisv 72 

Hoxsey  v.  Midland  E.  E 119 

Hutchinson  v.  Abbott 379 

Hyde,  Johnston  v 632 


J. 


James  v.  Lane. 30 

Jersey  City,  Flaacke  v... 57 

Jersey  City  v.  Gardner 622 

Jewell,  Athav 417 

Johnson  v.  Somerville 152,  621 

Johnston  V.  Hyde 632 

Jones  V.  Knauss 188 

Joyce  V.  Haines 99 


King,  Finev 108 

Kingon,  Pillsbury  V 287 

Kip  V.  Kip 213 

Kirk,  Foley  V 170 

Kise  V.  Heath 239 

Knauss,  Jones  v 188 

L. 

Lane,  James  v 30 

Lawless,  Bohde  v 412 

Lawrence,  Emson  V ...  286 

Lewis's  Case 219 

Lindsley,  Ellison  v 258 

Lothrop's  Case 248 

Lydecker  v.  Palisade  Land  Co...  415 

M. 

Mallett  V.  Bamber 253 

McClung  V.  McClung 462 

McGill  v.O'Connell 256 

McGregor  v.  Home  Ins.  Co 181 

McKeown  v.  McKeown 384 

Mechanics   Nat.    Bk.   v.  Burnet 

Mfg.  Co 486 

Merrill  V.  Eush 537 

Midland  E.  E.,  Hitchcock  v 86 

Midland  E.  E.,  Hoxsey  v 119 

Miller,  Colt  v 362 

Miller,  Nat.  Trust  Co.  v 155 

Morris  and  Essex  E.  E.,  Zabris- 

kiev. 22 


6  Stew.] 


CASES  REPORTED. 


Mount  V.  Van  Ness 262 

Murphy  v.  Coates 424 

Mut.  Life  Ins.  Co.  v.  Goddard....  482 

Mut.  Life  Ins.  Co.  v.  Sturges 328 

N. 

Nat.  Bk.  of  Frenchtown,   Poul- 

sonv 250,  618 

Nat.  Trust  Co.  v.  Miller 155 

Newark,  Smith  v 545 

Newark  Sav.  Inst.  v.  Forman 436 


O'Connell,  McGill  v 256 

O'Neill  V.Clark 444 

Opie,  Schmidt  V 138 

Oxford  Iron  Co.,  Del.,  L.  &  W. 

E.  R.  V 192 


P. 


Palisade  Land  Co.,  Lydecker  v.-  415 

Peacock,  Eichardson  v 597 

Perrine  v.  Vreeland 102 

Petty,  Youmans  V 532 

Pillsbury  V.  Kingon 287 

Pinnell  v.  Boyd 190,  600 

Post,  Van  Houtenv 344 

Poulson  V.  Nat.  Bk.  of  French- 
town 250,  618 

Putnam  v.  Clark 338 

R. 

Eed  Jacket  Tribe  v.  Hoff. 441 

Eedman  v.  Phila.,  M.  &  M.  E.  E.  165 

Eeeves,  Stevens  v 427 

Eeibolt,  Schaedel  v 534 

Eichardson  v.  Peacock 597 

Eoberts,  Gill  v 474 

Euckman,  Conover  v 303 

Euckman  v.  Euckman 354 

Eush,  Merrill  v 537 


S. 


Sayre,  Hoag  v 552 

Schaedel  v.  Eeibolt 534 

Schanck  v.  Schanck 363 

Schmidt  V.  Opie 138 

Schrass,  Wesling  v 42 

Sergent  v.  Sergent 204 

Sharp,  Wagner  v 520 

Skean  v.  Skean 148 

Smith  V.  Newark 545 

Smith  V.Smith 458 

Snyder  V.  Blair 208 

Somerville,  Doughty  v 1 

Somerville,  Johnson  v 152,  621 

Staats,  Wilson  V 524 

Standard    Oil    Co.,    Central     E. 

E.  V 127,  372 

Standard  Oil  Co.,  United  E.  E.v.  123 

Stevens  v.  Eeeves 427 

Sturges,  Mut.  Life  Ins.  Co.  v 328 

Sullivan,  Davis  v 569 

T. 

Thompson  v.  Filler 480 

Thompson  v.  Thorpe 401 

Thome  v.  Andrews 457 

Thorpe,  Thompson  v 401 

Tillotson  V.  Gesner 313 

Tompkins  v.  Campbell 362 

Townsend,  Weiland  v 393 

Trenton,  Dickinson  v 63 

Tucker  v.  Tucker 235 


U. 


United  E.  E.  v.  Standard  Oil  Co.  123 


Van  Doren  v.  Dickerson 388 

Van  Honten  v.  Post 344 

Van  Ness,  Mount  v 262 

Van  Orden  v.  Budd 143,  564 

Van  Orden,  Bpdd  v 143 

Vineland  Wine  Co.,  Carlton  v....  466 

Vreeland,  Perrine  v 102 


zu 


CASES  REPORTED. 


[33  Eq. 


W. 

Wagner  v.  Sharp 520 

"Walker,  Casper  v 35 

AVanzer  V.  Eldridge 511 

Warwick,  Danser  v 133 

Weiland  V.  Townsend 393 

Wells  V.  Wells 4 

Welsh,  Crater  v 362 

Wesling  V.  Schrass 42 

Westervelt  v.  Freeh ~  451 


Williams,  Allen  v 5S4 

Wilson  V.  Staats. 524 

Wood  V.  Chetwood. 9 

Woolsey  v.  Cummings  Car  Works,  432 

Y. 

Youmans  v.  Petty  ^ 532 

Z. 

Zabriskie  v.  Morris  &  Essex  B.  K.     22 


CASES  CITED 


A. 

Abbott  V.  Jenney 18  N.  H.  109 296 

Allis  V.  Billings 6  Mete.  415 508 

Alpaugh  V.  Eoberson 12  C.  E.  Gr.  96 299 

Altemus  V.  Elliot 2  Pa.  St.  62 588 

American  L.  I.  &  T.  Co.  v.  Kyerson 2  Hal.  Ch.  9 392 

American  Docjc  Co.  v.  Trustees 5  Stew.  Eq.  428 44 

Am.  Leading  Cases Vol.2  p.  579 643 

Anderson  V.  Doolittle 11  Conn.  283 296 

Anon 2  Roll.  173 293 

Arnold  v.  Eichmond  Iron  Works 1  Gray  434 508 

Arnold  v.  Steveus 24  Pick.  106 642 

Ashley  v.  Pond 18  Pick  268 642 

Astry  V.  Ballard 2  Lev.  185 608 

Atkins  V.  Boardman 2  Mete.  457 648 

Att'y-Gen.  V.  Metropolitan  E.  R 125  Mass.  515 276 


Babcock  v.  Booth 2  Hill  181 296 

Bagot  V.  Bagot 32  Beav.  509 609 

Ballentine  V.  Poyner 2  Hayw.  110 612 

Bank  V.  Dugan 2  Bland  254 482 

Banks  V.  Goodfellow L.  E.  (5  Q.  B.)  549 461 

Bangor  &  P.  M.  Slate  Co L.  E.  (20  Eq.)  59 185 

Bardwell  V.  Perry 19  Vt.  292, 74 

Barford  V.  Street 16  Ves.  135 81 

Barker  v.  Greenwood 4  M.  &  W.  421 26 

Barnes  v.  Taylor 12  C.  E.  Gr.  259 21 

Barned  v.  Barned 6  C.  E.  Gr.  245 427 

Bartlett  v.  Drew 57  N.  Y.  587 163 

Batton  V.Allen 1  Hal.  Ch.  99 346 

Bayard  V.  Hoffman 4  Johns.  Ch.  450 298 

Bell  V.Fleming 1  Beas.  13 531 

BeU  V.  Newman 5  S.  &  E.  78 74 

Bell  V.  Gilmore 10  C.  E.  Gr.  104 441 

Belford  v.  Newark  M.  Co 1  C.  E.  Gr.  117 194 

Belknap  v.  Trimble 3  Paige  577 640 

xiii 


xiv  CASES  CITED.  [33  Eq. 


Felton  V.  Belton 11  C.  E.  Gr.  449 71 

Benbow  V.  Townsend 1  M.  &  K.  506 136 

Benedict  v.  Goit 3  Barb.  459 278 

Berry  v.  Van  Winkle 1  Gr.  Ch.  269 443 

Beestone  v.  Waite 5  E.  &  B.  985 644 

Bethel  v.  Stanhope Cro.  Eliz.  810 293 

Bidlack  v.  Mason 11  C.  E.  Gr.  230 159 

Bill  V.  Cureton 2  Myl.  &  K.  503 299 

Billings  V.  Taylor 10  Pick.  460 611 

Black's  Appeal 44  Pa.  St.  503 74 

Black  V.  Black 5  Stew.  Eq.  74 310 

Black  V.  Del.  &  R.  C.  Co 9  C.  E.  Gr.  456 162 

Blatchford  v.  Kirkpatrick 6  Beav.  232 326 

Board  of  Chosen  Freeholders  v.  State 

Bank 2  Stew.  Eq.  268 46 

Bolles  V.  Beach 3  Zab.  6S0 263 

BoUes  V.  State  Trust  Co 12  C.  E.  Gr.  308 215 

Bonney  v.  Sealy 2  Wend.  481 211 

Bonslough  V.  Bonslough 68  Pa.  St.  495 295 

Borst  V.  Empie 1  Seld.  33 642 

Boston  Franklinite  Co.  V.  Condit 4  C.  E.  Gr.  394 27 

Bowlby  V.  Bowlby 10  C.  E.  Gr.  406 71,  369 

Bowne  v.  Bitter.. 11  C.  E.  Gr.  456 210 

Boyse  v.  Eossborough 6  H.  of  L.  Cas.  2 244 

Brewer  V.  Wilson 2  C.  E.  Gr.  182 657 

Brewster  V.  Striker 2  X.  Y.  19 25 

Brinkerhoff  v.  Franklin 6  C.  E.  Gr.  334 381 

Brinckerhoff  V.  Thalheimer 2  Johns.  Ch.  486 392 

British  Museum  V.  White 2  Sim  &  Stu.  595 230 

Brolasky  V.  Miller 1  Stock.  814 191,  602 

Brookfield  v.  Williams 1  Gr.  Ch.  341 422 

Brooklyn  Cent.  E.  E.  v.  Brooklyn  City 

E.  E 32  Barb.  358 279 

Brown  v.  Bissett 1  Zab.  46 73 

Brownell  v.  Curtis 10Paige210 298 

Browning  v.  Camden  &  W.  R.  E 3  Gr.  Ch.  47 166 

Buchler  V.  Gloninger 2  W^atts  226 295 

Buflfalo  E.  E.  V.  Leighton 10  Eeporter  149 282 

Butcher  v.  Churchill 14  Ves.  567 211 

Butcher  V.  Harrison 4  B.  &  Ad.  129 297 


Cadogan  v.  Kennet Cowp.  432 312 

Caldwell  v.  Fifield 4  Zab.  150 490 

Camden  &  A.  E.  R.  v.  Stewart 3  C.  E.  Gr.  4S9 319 

Cammack  V.  Johnson 1  Gr.  Ch.  163 '3 

Camp  V.Grant 21  Conn.  41 "4 


6  Stew.]  CASES  CITED.  xv 

Campbell  v.  Campbell 3  Stew.  Eq.  415 *263 

Campbell  V.Gardner 3  Stock.  423 483 

Campbell  V.  Macomb 4  Johns.  Ch.  534 392 

Cannon  v.  Cannon 11  C.  E.  Gr.  316 359 

Carlisle  v.  Cooper 6  C.  E.  Gr.  676 626,640,641 

Carlisle  v.  Cooper 4  C.  E.  Gr.  256 642 

Casher  v.  Peterson 1  South.  317 490 

easier  v.  Shipman 35  N.  Y.  533 641 

Cawley  v.  Leonard 1  Stew.  Eq.  467 331 

Chambers  V.  Tulaiie 1  Stock.  146..... 327 

Childs  V.  Jordan 106  Mass.  321 136 

Citizens  Coach  Co.  v.  Camden  H.  E.  Co.  2  Stew.  Eq.  299 131 

Clark  V.  Kosenkrans 4  Stew.  Eq.  665 414 

Claveringv.  Clavering 2  P.  Wms.  388 608 

Clay  V.  Eufford 19  E.  L.  &  E.  350 326 

Clement  v.  Kaign 2  McCart.  48 561 

Cleveland  v.  Boerum 24  N.  Y.  613 572 

Clinan  v.  Cook 1  Sch.  and  Lef.  41 660 

Clow  V.  Taylor 12  C.  E.  Gr.  418 657 

Coates  V.  Cheever 1  Cow.  460 611 

Cook  V.  Cook 2  Beas.  263 206 

Cook  V.  Field 15  Q.  B.  460 617 

Cole  V.  Potts 2  Stock.  67 660 

Colgan  V.  McKeon 4  Zab.  566 179 

Collins  V.  Tounley 6  C.  E.  Gr.  353 256 

Colyear  v.  Mulgrave 2  Keen  94 299 

Commonwealth  v.  Temple 14  Gray  76 278 

Conover  v.  Hobart 9  C.  E.  Gr.  120 191 

Conover  v.  Lewis 6  C.  E.  Gr.  230 391 

Cooper  V.  Carlisle 2  C.  E.  Gr.  530 657 

Cornish  v.  Cornish 8  C.  E.  Gr.  208 98,  369 

Corning  V.  Troy  Iron  Co 40  N.  Y.  191 641 

Cornish  v.  Bryan 2  Stock.  146 175 

Corwine  v.  Corwine 9  C.  E.  Gr.57y 78 

Cose  of  Water  Courses 2  Eq.  Cas.  Abr.  522 643 

Coster  V.  Monroe  Mfg  Co 1  Gr.  Ch.  467 581 

Coursen's  Will 3  Gr.  Ch.  408 247 

Crane  v.  Freese 1  Harr.  305 307 

Crawford  v.  Bertholf. Sax.  458 359 

Cromwell  v.  Seldon 3  Comst.  253 642 

Cross  V.  Brown 51  N.  H.  486 296 

Cross  V.  Morristown 3  C.  E.  Gr.  305 3 

Croseley  v.  Lightowler L.  R.  (2  ch.)  478 642 

Crowder,  Ex  parte 2  Vern.  706 73 

Crowell  V.  Hospital 12  C.  E.  Gr.  650 265 

Cumberland  Bank  v.  Hall 1  Hal.  215 343 

Cumberland  V.  Codrington 3  Johns.  Ch.  229 264 

Curran  v.  Arkansas 15  How.  304 163 


xvi  CASES  CITED.  [33  Eq. 

Curtis  V.  Hollingshead 2  Gr.  402 73 

Curtis  V.  Curtis 1  Sw.  &  Tr.  192 460 

Ciishing  V.Blake 3  Stew.  Eq.  689 215 

Cutler  V.  Tuttle 4  C.  E.  Gr.  549 387 

Cutting  V.  Dana 10  C.  E.  Gr.  271 655,  660 

D. 

Dale  V.  Birch 3  Camp.  347 308 

Davis  V.  Mahany 9  Vr.  104 309 

Davis  V.  Vanderveer 8  C.  E.  Gr,  558 522 

Davies  v.  Marshall 10  C.  B.  (N.  S.)  697 643 

Den  v.  Morris  Canal  Co 4  Zab.  587 827 

Dickey's  Appeal 73  Pa.  St.  218 86 

Dobbs  V.  Norcross 9  C.  E.  Gr.  327 327 

Doe  V.  Ball 11  M.  &  W.  531 297 

Doe  v.  Cafe 7  Exch.  675 25 

Doe  v.  Willan 2  B.  &  Aid.  84 25 

Doe  V.Williams 11  Q.  B.  688-700 644 

Dolman  v.  Cook 1  McCart.  63 191 

Doughty  V.  Somerville  &  E.  E.  R 1  Zab.  442 168 

Doughty  V.  Somerville  &  E.  R.  R 3  Hal.  Ch.  51 169 

Doughaday  v.  Crowell 3  Stock.  201 422 

Drinkwater  V.  Drinkwater 4  Mass.  354 296 

Durant  v.  Prestwood 1  Atk.  454 521 

Duke  of  Devonshire  v.  Eglin 84  Beav.  530 643 

Dysart  V.  Dysart 1  Rob.  Eq.  106 460 

E. 

Eads  V.  Williams 4  De  G.,  M.  &  G.  691 153 

Eagle  Fire  Co.  v.  Lent 6  Paige  635 392 

Eaton  V.Cook 10  C.  E.  Gr.  55 136 

Eaton  V.  Eaton 8  Vr.  113 504 

Easton  v.  New  York  &  L.  B.  R.  R 9  C.  E.  Gr.  49 376 

Elias  V.Griffith L.  R.  (4  App.  Cas.)  465 610 

Emanuel  v.  Bird 19  Ala.  596 74 

Esterbrook  Co.  v.  Ahem 4  Stew.  Eq.  3 573 

Everett  v.  Read 3  N.  H.  55 296 

Eyster  v.  Gaff. 1  Otto  521 572 


Farlee  V.  Farlee 1  Zab.  279 359 

Fawkner  v.  Watts 1  Atk.  407 346 

Field  V.  Mayor  of  New  York 2  Seld.  179 617 

Findlay  v.  Smith 6  Munf.  134 612 

Fitzpatrick  V.  Jersey  City 7  Vr.  120 626 


6  Stew.]  CASES  CITED.  xvii 


Flagler  v.  Blunt 5  Stew.  Eq.  518 296 

Fletcher  V.  Holmes 40  Me.  364 296 

Folly  V.  Van  Tuyl 4  Hal.  153 653,  359 

Forshaw  V.  Welsby 30  Beav.  243 229 

Fountaine  v.  Pellett 1  Ves.  343 588 

Freeholders  v.  Ked  Bank  Co 3  C.  E.  Gr.  93 277 

Freeman  V.  Scofield 1  C.  E.  Gr.  28 337 

French  v.  Griffin 3  C.  E.  Gr.  279 469 

G. 

Gamsey  v.  Mundy 9  C.  E.  Gr.  243 229 

Garr  v.  Bright 1  Barb.  Ch.  157 45 

Garrard  V.  Lauderdale 3  Sim.  1 299 

Garretson  V.  Brown 2  Dutch.  425 301 

Gest  V.  Flock 1  Gr.  Ch.  108 26 

Gibson  V.  Loper 6  Gray  279 508 

Gihon  V.  Belleville  Lead  Co 3  Hal.  Ch.  531 392 

Gilbert  V.  Trustees,  &c 1  Beas.  204 660 

Girrerv.  Bastaid 2  Phil.  619 326 

Globe  Ins.  Co.  v.  Lansing 5  Cow.  380 210 

Glass  V.  Hurlburt 102  Mass.  28 660 

Goldbeck  v.  Goldbeck 3  C.  E.  Gr.  42 205 

Gray  v.  Fox Sax.  259 237 

Green  v.  Blackwell 5  Stew.  Eq.  768 331 

Green  v.  Tantum 4  C.  E.  Gr.  105 141 

Green  v.  Eichards 8  C.  E.  Gr.  32 320  660 

Guest  V.  Hewitt 12  C.  E.  Gr.  479 573 

GuUck  V.  Gulick 10  C.  E.  Gr.  32 39 

H. 

Hall  V.Hall 2  McCord's  Ch.  269 75 

Hall  V.  Oldroyd 14  M.  &  W.  789 641 

Hall  V.Lund 1  H.  &C.  676 646 

Hall  V.  Piddock 6  C.  E.  Gr.  311 422 

Haggerty  V.  McCanna 10  C.  E.  Gr.  48 34,179,  536 

Haight  V.  Proprietors 4  Wash.  C.  C.  601 643 

Halsted  V.  Meeker 3  C.  E.  Gr.  136 237 

Hamilton  V.  Cummings 1  Johns.  Ch.  517 175 

Hanford  v.  Stone 2  Sim.  &  Stu.  196 482 

Hartshome  v.  Hartshorne 1  Gr.  Ch.  349 212 

Hasten  v.  Castner 4  Stew.  Eq.  697 296 

Hastings  V.  Crimckleton 3  Yeates  261 612 

Haughwout  V.  Murphy 7  C.  E.  Gr.  531 140,  447 

Hawes  v.  Leader Cro.  Jac.  270 292 

Hayes  v.  Stiger 2  Stew.  Eq.  196 210 


XVIll 


CASES  CITED.  [33  Eq. 


Hetfield  v.  Central  K.  E 5  Dutch.  571 274 

Higbee  v.  C.  &  A.  R.  E.  Co 5  C.  E.  Gr.  435 626 

Hill  V.  Beach 1  Beas.  31 310 

Hinchman  v.  Patereon  H.  R,  E 2  C.  E.  Gr.  75 274 

Hobyv.  Hoby 1  Vera.  218 608 

Hogan  V.  Eighth  Ave.  R.  R 15  N.  Y.  380 279 

Holland  v.  Cruft 20  Pick.  321 295 

Holmea  t.  Penney 3  K.  &  J.  90 297 

Holmes  v.  Steele 1  Stew.  Eq.  173 48S 

Hooper  v.  Eylea 2  Vern.  480 34 

Hooper  V.Holmes _  3  Stock.  122 136 

Houghton  V.  Reynolds 2  Hare  264 337 

Howell  V.  Teel 2  Stew.  Eq.  490 75 

Hughes  V.  Morris 1  Deg.  M.  &  G.  355 560 

Humphrey's  Will 11  G.  E.  Gr.  513 244 

Hunt  V.Gray 6  Vr.  227 343 

Huntington  V.  Savings  Bank 96  U.  S.  388 162 


Innea  v.  Lansing 7  Paige  583 '. 482 

Irwin  V.  Corode 12  Harris  162 612 

Irwin  V.  Farrer 19  Ves.  86 >^1 

Izzard  v.  May's  Landing  Co 4  Stew.  Eq.  511 443 

J. 

Janson  V.  Bury Bunb.  157 521 

Jennings  v.  Jennings 2  Beas.  38 206,  369 

Jersey  City  &  B.  E.  R.  v.  J.  C.  &  H. 

R.  E 5C.  E.  Gr.  61 166,275,  279 

Jersey  City  v.  Hudson 2  Beas.  420 277 

Jersey  City  v.  OCallaghan 12  Vr.  340 390 

Johnson  V.  Hubbell 2  Stock.  332 327 

Johnson  v.  Jacqui 10  C.  E.  Gr.  410  ;  Hid.  328;  12 

Id.  552 644,  045 

Jones  V.  Naughright 2  Stock.  298 489 

Joslin  V.  New  Jersey  Car  Co 7  Vr.  141 86 

Judge  V.  Eeese 9  C.  E.  Gr.  387 146 


Kay  V.  Kay 3  Gr.  Ch.  495 39 

Kimball  v.  Morton 1  Hal.  Ch.  26 136 

King  V.  Whitely 10  Paige  465 265 

Kingsbury  v.  Wild 3  X.  H.  30 296 

Kirk  V.  Eddowes 3  Hare  509 347 

Klapworth  V.  Dressier 2  Beas.  62 265,  440 


6  Stew.]  CASES  CITED.  xix 


L. 

Langton  v.  Horton 1  Hare  549 617 

Lansing  V.  Goelet 9  Cow.  346 210 

Laingv.Laing 6  C.  E.  Gr.  248 152 

Lathrop  V.  Smalley 8  C.  E.  Gr.  192 237 

Lawrence  V.  Nelson 21  N.  Y.  158 163 

Lee  V.  Stiger 3  Stew.  Eq.  610 191 

Lehigh  Valley  E.  K  v.  McFarlan 4  Stew.  Eq.  706. 627 

Lewis  V.  Smith 9  K  Y.  502 63 

Lewis  V.  Keichey 12  C.  E.  Gr.  240 319 

Liggins  V.Inge 7  Bing.  682 643 

Linford  v.  Lin  ford 4  Dutch.  113 73 

Lloyd  V.  Tench 2  Ves.  sen.  213 521 

Lockhart  v.  Van  Alstyne 31  Mich.  76 184 

London  Lidia  Kubber  Co L.  K.  (5  Eq.)  519 184 

Loweree  v.  Newark 9  Vr.  151 169 

Lozear  v.  Shields 8  C.  E.  Gr.  510 503 

Luttrell's  Case 4  Coke  86 641 

Lyman  v.  Sale 2  Johns.  Ch.  487 392 

Lynch  v.  Clements 9  C.  E.  Gr.  431 496 

M. 

Mackie  v.  Cairns 5  Cow.  547 298 

Macknet  v.  Macknet 11  C.  E.  Gr.  258 14 

Mahon  y.  Freeholders  of  Hudson 10  Vr.  640 628 

Marsh  v.  Marsh 2  Stew.  Eq.  296 5 

Matter    of   Water    Commissioners    of 

Jersey  City 2  Vr.  73 628 

Mathews  v.  Dragand 3  Desauss.  25 588 

Matlack  v.  James 2  Beas.  126 73 

Mattison  v.  Demarest 1  Eob.  (N.  Y.)  717 482 

Mayor  v.  Attorney-General 5  Stew.  Eq.  815 187 

M.&  E.  E.  E.  Co.  V.  Pruden 5  C.  E.  Gr.  530 626,  643 

McCahill  v.  Equitable  Co 11  C.  E.  Gr.  531 66,  210 

McCormack's  Appeal 55  Pa.  St.  252 74 

McDonald  v.  O'Connell 10  Vr.  318 252 

McDougald  v.  Dougherty 11  G^o.  570 482 

McLaren  v.  Pennington 1  Paige  102 163 

McLean  V.  Weeks 61  Me.  277,  65  Me.  411 296 

McLearn  v.  McLellan 10  Pet.  625 266 

McLenahan  v.  McLenahan 3  C.  E.  Gr.  101 263 

Meldowney  V.  Meldowney 12  C.  E.  Gr.  328 206 

Mercer  &  S.  E.  E.  v.  Del.  &  B.  E.  E....  11  C.  E.  Gr.  464 168 

Metier  v.  Metier 3  C.  E.  Gr.  270 175 

Mettler  v.  Easton  &  A.  E.  E 10  C.  E.  Gr.  214 166 


XX  CASES  CITED.  [33  Eq. 

Mettler  v.  Easton  &  A.  K.  K 8  Vr.  222 168 

Metropolitan  R.  R.  v.  Quincy  R  R 12  Allen  262 279 

Metropolitan  Bank  V.  Durant 7  C.  E.  Gr.  35 489 

Miller  v.  Henderson 2  Stock.  320 431 

Miller  v.  Mackenzie ~ 2  Stew  Eq.  291 160 

Miller  v.  Mackenzie 2  Stew.  Eq.  291 302 

Milward  v.  Earl  of  Thanet 5  Ves.  720 153 

Mittnight  v.  Smith 2  C.  E.  Gr.  259 73 

Moncure  V.  Harrison 15  Pa.  St.  385 298 

Monhouse  v.  Corporation 17  Ves.  380 375 

Montville  v.  Haughton 7  Conn.  542 442 

Moores  v.  Moores 12  Vr.  440 26 

Moores  v.  Moores 1  C.  E.  Gr.  275 71,  206 

3Ioore  v.  Bonnell - 2  Vr.  90 300 

Moore  v,  Blauvelt 2  McCart.  367 496 

Morgan  v.  Skidmore 55  Barb.  263 74 

Morris  and  Essex  RH.  v.  Hudson  Cc  10  0.  E.  Gr.  84. 166 

Morris  and  Essex  R.  R.  v.  Newark 2  Stock.  352 273 

Morris  and  Essex  R.  R.  v.  Prnden 4  C.  E.  Gr.  386 274 

Morris  and  Essex  R.  R.  v.  Sussex  R.  R,  6  C.  E.  Gr.  542 278 

Morris  and  Essex  R.  R.  v.  Pruden 5  C.  E.  Gr.  530 >  643 

Morris  Canal  Co.  v.  Fagan 7  C.  E.  Gr.  430,  436,  437 626 

Morse  V.  Copeland 2  Gray  302 643 

Munday  v.  Vail 5  Vr.  418 65 

Murray  v.  De  Rottenham 6  Johns.  Ch.  52 588 

N. 

Kathan  V.  Whitlock 3  Edw.  Ch.  215., 163 

National  Bank  v.  Sprague 5  C  E.  Gr.  13 „ 75,  330 

Neel  v.Neel 7  Harris  323 612 

Kew  Jersey  Southern   R.  R.  v.  Long 

Branch  Commissioners 10  Vr.  28 130 

Nightingale  v.  Goulburn 5  Hare  484 230 

Nightingale  v.  Meginnis 5  Vr.  461 382 

Norcutt  V.  Dodd 1  Cr.  &  Ph.  100 297 

North  River  Co.  v.  Shrewsbury  Church,  2  Zab.  424 343 

Norwood  V.  De  Hart. 3  Stew.  Eq.  412 ., 265 


Gates  V.  National  Bank 100  U.  S.  239 187 

O'Connor  v.  Spaight 1  Sch.  &  Lef 659 

O'Neil  V.  Freeholders  of  Hudson 12  Vr.  161 628 

Olmstead  v.  Loomis 5  Seid.  423 642 

Osborne  v.  Moss 7  Johns.  161 298 

Osborne  v.  Tunis 1  Dutch.  633 211 

Ower  V.  Field 102  Mass.  81-114 642 


6  Stew.]  CASES  CITED. 


Palys  V.  Jewett 5  Stew,  Eq.  302 443 

Palmer  v.  Thayer 28  Conn.  237 298 

Palmer  V.  Palmer 7  C.  E.  Gr.  88 152 

Paterson  &  P.  H.  R.  E,  v.  Paterson 9  C.  E,  Gr.  158 275 

Paterson  V.  O'Neil 5  Stew.  Eq.  386 404,  416 

Peacock  v.  Newbold 3  Gr.  Ch.  61 21 

Pemberton  v.  Topham 1  Beav.  316 482 

Perrine  V.  Applegate 1  McCart.  531 256 

Peter  v.  Daniel 5  C.  B.  567 646 

Plummer  v.  Keppler 11  C.  E.  Gr.  482 153 

Plympton  v.  Boston  Dispensary 106  Mass.  544 180 

Pomfret  V.  Eecroft 1  Wms.  Saund.  323 646 

Post  V.  Stiger 2  Stew.  Eq.  554 139,  414 

Potts  V.  Whitehead 5  C.  E.  Gr.  85 657 

Prall  V.  Lamson 2  Allen  275 642 

Pratt  V.  Vattier 9  Pet.  413 154 

Prescott  V.  Waite 21  Pick.  341 646,  648 

Pringle  v.  Pringle 59  Pa,  St.  281 359 

Proprietors  &c.  ads.  Jones 7  Vr.  206 262 

«ruden  v.  Williams 11  C.  E.  Gr.  210 86 

B. 

Raderv.  Eoad  District 7  Vr.  273 441 

Radcliff  V.  Warrington 12  Ves.  332 655 

Randolph  v.  Daly ,.  1  C.  E.  Gr.  313 75 

Earitan  &  D.  B.  E.  E.  v.  Del.  &  E.  C. 

Co 3C.  E.  Gr.546 278,  282 

Earitan  Water  Power  Co.  v.  Veghte....  6  C.  E.  Gr.  463 643 

Redmond  v.  Dickerson 1  Stock.  507 163 

Reeve  v.  Elmendorf. 9  Vr.  125 203 

Eeed  v.  Norris 2  Myl.  &  Cr.  362 211 

Eeed  v.  Eeed 1  C.  E.  Gr.  248 612 

Eeeves  V.  Cooper 1  Beas.  223 488 

Reg.v.  Clark 5  Q.  B.  887 590 

Ridgeway  v.  Wharton 6  H.  L.  Cases  238 657 

Rigby,  Ex  parte 19  Ves.  463 335 

Robert  v.  Hodges 1  C.  E.  Gr.  299 140 

Rogers  v.  Rogers 3  C.  E.  Gr.  445 205 

Rogers  Locomotive  Works  v.  Erie  Eail- 

wayCo 5  C.  E.  Gr.  379 640 

Rosewell  v.  Bennett 3  Atk.  77 347 

Ross's  Trust L.  R.  (13  Eq.)  286 522 

Rutland  Y.  Paige » 24  Vt.  181 442 


xxii  CASES  CITED.  [33  Eq. 


S. 

Salisbury  v.  Andrews 128  Mass.  336 649 

Sanborn  v.  Adair - 2  Stew.  Eq.  338 191 

Saunders  v.  Newman 1  B.  &  Aid.  258 641 

Sawyer  V.  Hoag 17  Wall.  610 163 

Sayre  v.  Fredericks 1  C.  E.  Gr.  205 136 

Schenck  V.  Schenck 1  C.  E.  Gr.  174 27,  335 

Schenck  V.  Conover 2  Beas.  31 374 

Schomp  V.  Schenck 11  Vr.  195 86 

Scull  V.  Alter 1  Harr.  147 73 

Scull  V.  Beeves 2  Gr.  Ch.  84 299 

See  V.  Zabriskie 1  Stew.  Eq.  422 216 

Seton  V.  Slade 3  Lead.  Cas.  in  Eq.  67 327 

Shann  v.  Zimmerman 3  Zab.  150 309 

Shears  v.  Eogers 3  B.  &  Ad.  362 294 

Shipman  v.  ^tna  Ins.  Co 29  Conn.  245 298 

Shreve  v.  Joyce 7  Vr.  44 335 

Silver  v.  Campbell 10  C.  E.  Gr.  465 210 

Smith  V.Alton 7  C.  E.  Gr.  572 331 

Smith  V.  Clay 3  Bro.  C.  C.  639 154 

Smith  V.  Smith 3  Stew.  Eq.  564 175 

Smith  v.Kav 7  H.  of  L.  Cas.  750 337 

Smyles  v.  Hasling 22  N.  Y.  217 642 

St.  Mary's  Church  v.  Stockton 4  Hal.  Ch.  580 327 

Stackhouse  V.  Horton 2  McCart.  202 541 

Stanley  V.  Stanley 1  Atk.  455 521 

Starr  V.  Camden  &  A.  R.  B 4  Zab.  592 273,  168 

State  V.Foley 31  Iowa  527 279 

State  V.  Laverack 5  Vr.  201 275 

Stella  V.  Conover 3  Stew.  Eq.  640 262 

Stephenson  v.  Taverners 9  Gratt.  393 4S2 

Stevens  v.  Erie  Railway  Co 6  C.  E.  Gr.  259 626 

Stewart  v,  Kearney 6  "Watts  453 295 

Stilwell  V.  Doughty 2  Bradf.  311 180 

Stilwell  V.  Homer 6  Vr.  307 642 

Stokoe  V.  Singers 8  E.  &  B.  31 643 

Storm  V.  Davenport 1  Sandf.  Ch.  135 298 

Stoudinger  v.  Newark 1  Stew.  Eq.  446 277 

Stoughton  V.  Leigh 1  Taunt.  402 608 

Stratton  v.  Allen 1  C.  E.  Gr.  229 489 

Strike's  Case 1  Bland  57 482 

Stuyvesant  V.  Hall 2  Barb.  Ch.  151 3:i5 

Swift  V.  Thompson 9  Conn.  63 298 


6  Stew.]  CASES  CITED. 


Tail  V.  Hartford  P.  &  F.  E.  E 8  E.  I.  310 184 

Tate  V.Tate 11  C.  E.  Gr.  55 205 

Taylor  V.  Taylor 1  Stew.  Eq.  207 71,  206 

Taylor  v.  Corp.  of  St.  Helen's 6  Ch.  Div.  271 644 

Terhnne  v.  Taylor 12  C.  E.  Gr.  80 382 

Test  V.  Test 4  C.  E.  Gr.  342 205 

Thelluson  v.  Woodford 4  Yes.  Til , 230 

Thomas  v.  West  Jersey  E.  E 101  U.  S.  74 162 

Thompson  V.  Thompson 1  Sw.  &  Tr.  231 205 

Townshend  v.  McDonald 2  Kerr.  381 642 

Tichenor  v.  Dodd 3  Gr.  Ch.  454 265 

Tice  V.  Annin 2  Johns.  Ch.  125 212 

Titus  V.  Titus 11  C.  E.  Gr.  Ill 479 

Trenton  Ins.  Co.  V.  McKelway 1  Beas.  133 160,  162 

Trotter  V.  Hughes 12  N.  Y.  74 265 

Trustees  V.  Trenton 3Stew.Eq.683 46,  403,  416 

Trusdell  v.  Jones , 8  C.  E.  Gr.  121 382 

Tucker  v.  Tucker 2  Stew.  Eq.  286 236 

Tucker  v.  Tucker 6  Stew.  Eq.  235 532 

Turmo  v.  Trezerant 2  Desauss.  264 74 

Turner  v.  Cheesman 2  McCart.  243 496 

V. 

Vandnyiiv.Vreeland 3  Stock.  370 661 

Yan  Doren  v.  Eobinson 1  C.  E.  Gr.  263.....*:. 153 

Van  Keuren  v.  McLaughlin 6  C.  E.  Gr.  163 303 

Van  Walkenburgh  v.  Eahway  Bank....  4  Hal.  Ch.  725 375 

Varick  v.  New  York 4  Johns.  Ch.  53 4 

Varick  v.  Smith 5  Paige  136 442 

Vaughn  V.  Johnson 1  Stock.  173 488 

Viner  V.  Vaughan 2  Beas.  466 G09 

Vreelandv.  Vreeland 1  C.  E.  Gr.  512 237 

Vreeland  V.  Blauvelt 8  C.  E.  Gr.  483 327 

Wade  V.Miller. 3  Vr.  296 65 

Walburn  v.  Engilby 1  M.  &  K.  61 377 

Walford  V.  Waiford L.  E.  (3  Ch.)  812 375 

Walker  V.  Easterby 6  Ves.  612 188 

Walsh  V.  Walsh 1  Eq.  Cas.  249 521 

Wanmaker  v.  Van  Buskirk Sax.  685 427 

Wart  v.  Maxwell 5  Pick.  27 508 

Warwick  v.  Dawes 11  C.  E.  Gr.  548 602 


xxlv  CASES  CITED.  [33  Eq. 


Washburn  v.  Burns^ 5  Vr.  18 215 

Watts  V.  Kelson L.  K.  (6  ch.)  166 641 

Wheeler  V.  Wheeler 9  Cow.  34 335 

Whitfield  V.  Benitt 2  P.  Wms.  242 603 

Whitfield  V.  Levy„ 6  Vr,  149 319 

Wilder  v.  Keeler.„ 3  Paige  167 74 

Wilkins  V.  Kirkbride 12  C.  E.  Gr.  93 65,  392 

Willard  v.  Harbeck 3  Denio260 58 

Williams  v.  Earl  of  Jersey 1  Cr.  &  Ph.  91 643 

Williamson  v.  Johnson 7  Hal.  86 490 

Williamson  v.  Wilson,, 1  Bland  418 482 

Willink  V.  Morris  Canal  Co 3  Gr.  Ch.  377 45 

Wilson  V.  King 8  C.  E.  Gr.  150 263 

Wills  V,  Cooper,. 1  Dutch.  137 27 

Wintermute'B  Will 12  C.  E.  Gr.  447 256 

Winthrop  v.  Royal  Asa.  Co 1  Dick.  282 188 

Wisham  v.  Lippincott.- 1  Stock.  353 „    75 

Withers  V.  Yeaden 1  Eich.  Eq.  324 396 

Woddrop  V,  Price 3  Desauss.  203 74 

Wood  V.  Dummer„ 3  Mason  308 -  163 

Wood  V.  Westfall Younge  305 482 

Woodruff  V.  Black Sax.  338 „  212 

Woodruff  V.  Depue 1  McCart.  168 431 

Woodward  v.  Woodward 1  C.  E.  Gr.  83 38 

Wright  V.  Carter 3  Dutch.  76 277 

Wyckoff  V.  Gardner- Spen.  556 215 

Wright  V.  Puchett. 22  Gratt  374 660 


Yeatman  v.  Yeatman L.  R.  (1  P.&  D.)  489 370 


CASES 


ADJTJDGED  IN 


THE  COURT  OF  CHANCERY 

OF 

THE  STATE  OF  NEW  JERSEY, 

OCTOBER  TERM,  1880. 


Theodore  Runyon,  Esq.,  Chancellor. 


Abraham  V.  Van  Fleet,  Esq.,  Vice-Chancellor. 


Eugene  S.  Doughty 


V. 

The  Board  of  Commissioners  of  Somervillb. 

Complainant  moved  back  a  fence  along  a  public  street,  and  threw  out  a  strip 
of  land  six  feet  in  width,  thereby  rendering  the  street  more  dangerous  for 
travel,  by  throwing  a  ditch  running  along  the  fence  nearer  the  centre  of  the 
street.  Thereupon  the  street  commissioners  began  to  cut  away  part  of  the 
strip  of  land,  in  order  to  alter  the  ditch  and  render  the  passage  of  the  street 
safer. — Held,  that  complainant  could  not  enjoin  the  acts  of  the  commissioners 
in  that  matter,  because — 

(1)  If  he  had  dedicated  the  strip  of  land,  the  commissioners  had  authority 
(under  the  act  for  "  the  improvement  of  Somerville ")  to  improve  it;  and 

(2)  If  he  had  not  dedicated  it,  such  injury  was  not  irreparable,  and  he 
could  obtain  adequate  redress  at  law. — Held,  also,  that  since  such  commission- 
ers had  power  to  remove  encroachments  on  highways  only  by  resolution  or 
ordinance,  their  threatened  removal  of  complainant's  fence  so  as  to  add  to 


2  CASES  IN  CHANCERY.  [33  Eq. 

Doughty  V.  Commissioners  of  Somerville. 

such  higliway  an  additional  strip  of  land  from  five  to  nine  feet  wide  because 
of  an  alleged  encroachment  to  that  extent,  without  any  oflScial  direction  by 
resolution  or  ordinance,  and  without  first  ascertaining  whether  there  was  an 
actual  encroachment,  the  complainant  and  his  grantors  having  been  in  quiet 
possession  of  the  premises  for  thirty  years,  might  be  enjoined. 


Bill  for  injunction.  On  bill  and  answer.  Motion  for  pre- 
liminary injunction. 

Mr.  A.  A.  Clark,  for  complainant. 

Mr.  J.  J.  Bergen,  for  defendants. 

The  Chancellor. 

The  complainant  prays  an  injunction  to  restrain  the  defend- 
ants from  tearing  up  a  ditch  and  drain  in  a  street  known  as 
Raritan  road,  along  the  front  of  his  property  in  Somerville,  and 
from  in  any  way  intermeddling  with  the  ditch  or  drain,  and 
from  removing  the  fence  in  front  of  his  premises.  The  com- 
plainant's property  is  a  very  valuable  one,  handsomely  improved 
for  private  residence,  and  has  a  front  of  about  eight  hundred 
feet  on  the  road.  "Within  a  year  past  he  removed  his  road  fence 
about  six  feet  back.  Before  its  removal  the  fence  stood  on  the 
edge  of  a  ditch,  which  was  at  the  side  of  and  in  the  road.  The 
removal  of  the  fence  appears  to  have  made  the  ditch  dangerous 
to  public  travel,  and  the  defendants  set  about  altering  and  im- 
proving it,  and  in  so  doing  proposed  to  cut  away  part  of  the  six 
feet  thrown  out  by  the  complainant,  so  that  the  side  of  the  ditch 
next  to  his  property  will  be  from  two  to  three  feet  nearer  to  that 
property  than  it  was  before.  They  also  propose  and  intend  to 
remove  the  complainant's  fence  on  the  road  from  five  to  nine 
feet  back  along  the  whole  line.  They  claim  that  he  and  those 
under  whom  he  derives  his  title,  have  unlawfully  encroached  to 
that  extent  upon  the  road.  If  they  carry  this  design  into  effect, 
they  will  render  it  necessary  for  him  to  remove  those  of  his  orna- 
mental trees  which  stand  on  the  strip  that  they  propose  so  to 
reclaim  for  public  use.     When  the  bill  was  filed  the  defendants 


6  Stew.]  OCTOBER  TERM,  1880.  3 

Doughty  V.  Commissioners  of  Somerville. 

had  already  done  part  of  their  intended  work  upon  the  ditch. 
It  would  appear,  by  the  statements  of  the  bill,  that  the  complain- 
aut  gave  the  six  feet  thrown  out  as  before  mentioned  to  the 
public.  The  defendants  are  empowered  by  the  statute  from 
which  they  derive  their  authority  (P.  L.  of  1868  p.  4-'^9)  to 
cause  to  be  constructed,  enlarged,  repaired  and  extended,  any  cul- 
verts, sewers,  drains  or  ditches  in  or  along  any  of  the  public 
streets  or  roads  within  the  limits  of  the  town.  If  the  complain- 
ant has  dedicated  the  six  feet  to  the  use  of  the  public  as  part  of 
the  street  (he  says  he  is  willing  that  it  should  be  used  as  a  side- 
walk), the  defendants  have  a  right  to  alter  the  ditch  as  they 
propose.  But  if  not,  and  the  strip  thrown  out  is  the  complain- 
ant's private  property,  the  injury  complained  of  in  this  con- 
nection is  not  irreparable,  and  he  can  obtain  adequate  redress  at 
law,  and,  under  the  circumstances,  he  is  not  entitled  to  the  inter- 
vention of  this  court  by  injunction.  Cross  v.  Morristown,  3  C. 
E.  Gr.  305. 

But  as  to  the  proposed  removal  of  the  fence  the  case  is  differ- 
ent. The  defendants  are  empowered  by  the  statute  before  re- 
ferred to,  by  resolution  or  ordinance,  to  prevent  and  cause  to  be 
removed  all  obstructions  in  the  streets  or  roads  of  the  town  ;  but 
tJiey  do  not  claim  to  have  passed  any  resolution  or  ordinance  on 
the  subject  of  the  alleged  encroachment.  They  admit  that  they 
intend  to  remove  the  fence  so  as  to  regain  for  the  road  from  the 
land  within  it  claimed  by  the  complainant  to  be  his  private 
property,  and  which  it  would  appear  has  been  claimed  by  him 
and  those  under  whom  he  derives  his  title,  as  their  private  prop- 
erty for  at  least  thirty  years,  a  strip  of  from  five  to  nine  feet  in 
width  along  his  entire  front.  They  say  in  their  answer  that 
they  are  willing  that  the  true  location  of  the  street  should  be 
ascertained  by  surveys  and  measurements  tb  be  made  by  a  com- 
petent civil  engineer,  to  be  agreed  upon  by  the  parties  or  to  be 
appointed  by  this  court.  It  does  not  appear  that  they  have 
taken  any  steps  to  ascertain  whether  the  alleged  encroachment  in 
fact  exists.  Indeed,  it  seems  not  improbable  that  they  are  in 
error  as  regards  the  history  and  origin  of  the  road  in  front  of  the 
complainant's    property.     The  complainant,  under  the   circum- 


4  CASES  IN  CHANCERY.  [33  Eq. 

Wells  V.  WeUs. 

Stances,  is  entitled  to  the  aid  of  this  court  by  its  injunction  to  pro- 
tect him  against  the  threatened  removal  of  his  fence.  Gross  v. 
Morristown,  ubi  supra ;  Varick  v.  New  York,  Jf.  Johns.  Ch.  53. 
There  will  be  an  injunction  accordingly. 


Joseph  K.  Wells 

V. 

Marie  Lottise  "Wells. 

1.  The  act  of  1880  (P.  L.  of  1880  p.  52),  "  that  in  all  civil  actions,  in  any  court 
of  law  or  equity  of  this  state,  any  party  thereto  may  be  sworn  and  examined  as 
a  witness,  notwithstanding  any  party  thereto  may  sue  or  be  sued  in  a  repre- 
sentative capacity  ;  provided,  nevertheless,  that  this  supplement  shall  not  extend 
so  as  to  permit  testimony  to  be  given  as  to  any  transaction  with,  or  statement 
by  any  testator  or  intestate  represented  in  said  action,"  does  not,  by  virtue  of 
its  provision  that  any  party  to  any  action  may  be  sworn,  remove  the  prior  statu- 
tory disqualification  of  a  husband  or  wife,  in  a  suit  for  divorce  on  the  ground 
of  adultery,  to  testify  to  anything  except  the  fact  of  marriage. 

2.  In  a  suit  by  a  husband  for  divorce  from  his  wife  on  the  ground  of 
adultery,  a  non-resident  detective  had  been  employed  by  the  husband,  and  ex- 
amined by  him  in  reference  to  one  matter  only,  and  cross-examined  by  the 
wife's  counsel,  after  which  he  left  the  state. — Held,  that  the  court  would  not 
order  the  husband  to  p<-oduce  him  again  for  examination  by  the  wife  as  to  other 
matters ;  nor  would  the  husband  be  ordered  to  produce  the  correspondence 
between  himself  and  such  detective  during  the  latter's  employment  by  the 
husband,  such  letters  being  in  the  hands  of  the  detective  and  not  at  all  under 
the  husband's  control. 


Bill  for  divorce  a  vinculo. 

Mr.  I.  W.  Scudder;  for  complainant. 

Mr.  J.  D.  Bedle,  for  defendant. 

The  Chancellor. 

In  the  course  of  the  examination  of  witnesses  in  this  cause,  two 
questions  have  arisen  :  One  as  to  the  admissibility  of  the  defend- 


6  Stew.]  OCTOBER  TERM,  1880. 


Wells  V.  Wells. 


ant  (the  suit  is  for  a  divorce  on  the  ground  of  adultery)  as  a 
witness,  to  disprove  the  crime  charged  upon  her;  and  the  other 
as  to  whether  the  court  will  require  the  complainant  to  bring 
again  upon  the  witness-stand,  for  examination  by  the  defendant 
in  her  defence,  James  Irving,  a  detective  officer,  who  has  been 
examined  as  a  witness  by  the  complainant,  and,  having  been 
cross-examined  and  having  signed  his  testimony,  has  left  the 
state  ]  and  to  produce  certain  documents  which,  it  appears  from 
Irving's  testimony,  he  has  in  his  possession  or  under  his  control, 
being  letters  from  the  complainant  to  him,  and  copies  of  his 
answers  thereto.  By  the  third  section  of  the  act  concerning 
evidence  {Rev.  p.  378),  it  is  provided  that  parties  may  be  wit- 
nesses in  their  own  behalf,  except  when  the  opposite  party  is 
prohibited  by  any  legal  disability  from  being  sworn  as  a  witness, 
or  either  of  the  parties  sues  or  is  sued  in  a  representative  capacity, 
except  as  subsequently  provided  by  the  act.  By  the  fifth  section, 
the  husband  or  wife  of  a  party  or  other  person  interested  in  a 
suit  is  made  a  competent  witness  for  such  party  or  person,  and  it 
is  provided  that  he  or  she  may  be  compelled  to  give  evidence  for 
such  party  or  person,  but  that  nothing  contained  in  the  section 
shall  render  any  husband  or  wife  competent  or  compellable  to 
give  evidence  for  or  against  the  other  in  any  criminal  action  or 
proceeding,  or  in  any  action  or  proceeding  for  divorce  on  ac- 
count of  adultery,  except  to  prove  the  fact  of  marriage,  or  in  any 
action  for  criminal  conversation,  or  compellable  to  disclose  any 
confidential  communications  made  by  the  one  to  the  other  during 
the  marriage.  In  Marsh  v.  Harsh,  2  Stew.  Eq.  296,  it  was  held 
by  the  court  of  errors  and  appeals,  construing  the  act,  that  in  a 
suit  for  divorce  for  adultery,  neither  husband  nor  wife  is  a  com- 
petent witness  to  prove  or  disprove  the  charge.  But  it  is  insisted 
that  by  the  supplement  to  the  act  (P.  L.  of  1880  p.  52),  that  dis- 
ability is  wholly  removed.  The  supplement  provides  that  in  all 
civil  actions,  in  any  court  of  law  or  equity,  any  party  thereto 
may  be  sworn  and  examined,  as  a  witness,  notwithstanding  any 
party  thereto  may  sue  or  be  sued  in  a  representative  capacity ; 
provided,  however,  that  it  shall  not  extend  so  as  to  permit  testi- 
mony to  be  given  as  to  any  transaction  with  or  statement  by  any 


6  CASES  IN  CHANCERY.  [33  Eq. 

Weils  V.  Wells. 

testator  or  intestate  represented  in  such  action.  Neither  directly 
nor  by  implication  does  this  supplement  remove  the  disability 
imposed  by  the  fifth  section  of  the  act.  It  obviously  was  intended 
merely  to  remove  the  disability  specified  in  the  proviso  of  the 
third  section  of  the  act.  As  the  act  stood  when  the  supplement 
was  passed,  a  party  might  be  sworn  and  examined  as  a  witness 
in  his  own  behalf,  provided  the  other  party  was  not  under  any 
legal  disability  from  being  a  witness,  or  was  not  suing  or  being 
sued  in  a  representative  capacity,  and  a  wife  or  husband  of  a 
party  was  competent  and  might  be  compelled  to  give  evidence  in 
a  suit,  except  that  no  husband  or  wife  should  be  competent  or  com- 
pellable to  give  evidence  for  or  against  the  other  in  any  criminal 
action  or  proceeding,  or  in  any  action  or  proceeding  for  divorce  on 
account  of  adultery,  except  to  j^rove  the  fact  of  marriage,  or  in  any 
action  for  criminal  conversation,  and  should  not  be  compellable 
to  disclose  confidential  communications  made  by  the  one  to  the 
other  during  the  marriage.  The  supplement,  while  it  partially 
removes  the  disability  of  parties  which  was  occasioned  by  the 
fact  that  the  adversary  sued  or  was  sued  in  a  representative  char- 
acter, goes  no  further,  and  does  not  remove  or  affect  the  disability 
and  privileges  declared  by  the  proviso  of  the  fifth  section.  By 
its  terms  it  is  manifestly  confined  in  its  operation  to  the  partial 
repeal  of  the  disqualifying  exception  just  referred  to  in  the  third 
section.  The  defendant  is  not  a  competent  witness  in  the  cause 
to  disprove  the  charge  of  adultery. 

She  insists  that  the  court  should  require  the  complainant  to  pro- 
duce the  witness  Irving,  who  resides  out  of  this  state,  for  examina- 
tion by  her  in  her  behalf,  and  to  produce,  also,  the  letters  received 
by  Irving  from  the  complainant,  and  the  copies  of  those  written 
and  sent  by  him  to  the  complainant  during  the  period  of  his  em- 
ployment by  the  latter  as  a  detective,  in  reference  to  the  matter  in 
controversy  in  this  suit.  The  complainant  examined  Irving 
about  a  certain  ring  alone,  and  it  is  not  claimed  that  the  letters 
are  to  be  used  to  contradict  his  testimony  in  reference  to  that 
matter,  but  they  are  to  be  used  to  show  condonation  by  the  com- 
plainant of  the  defendant's  adultery,  if  indeed  she  was  guilty  of 
that  oiFence.     That  is  to  say,  the  defendant  asks  that  the  court 


6  Stew.]  OCTOBER  TERM,  1880.  7 

Bourquin  v.  Bourquin. 

shall  not  only  require  the  complainant  to  produce  the  witness,  to 
be  examined  by  her  in  her  behalf,  but  shall  require  him  to  see  to 
it  that  the  witness  produces  at  the  same  time,  for  inspection  by 
her,  the  letters  which  the  complainant  sent  to  the  witness,  and 
the  copies  of  the  letters  sent  by  the  witness  to  the  complainant. 
It  is  not  claimed  that  these  letters  and  copies  are  in  the  hands  of  the 
complainant  or  under  his  control.  It  is  proved  that  they  are  in  the 
hands  or  under  the  control  of  the  witness.  I  can  see  no  principle 
on  which  this  application  can  be  granted  in  either  of  its  branches. 
The  complainant  is  not  bound  to  keep  his  witness  in  court  until 
the  defendant  may  have  determined  whether  she  will  examine 
him  in  her  own  behalf  or  not.  If  a  witness  residing  out  of  the 
state  is  here  to  testify  for  one  party,  and  the  other  desires  to  take 
Lis  testimony  in  his  behalf  while  he  is  here,  the  statute  points  out 
a  way  to  obtain  it ;  and,  apart  from  the  statute,  the  court  would, 
on  application,  effectively  aid  the  party  in  obtaining  the  testimony. 
When  a  party  has  kept  his  witness  in  court  until  the  cross-ex- 
amination is  ended,  he  may  then  suffer  him  to  depart ;  he  is  not 
bound  to  detain  him  longer.  Nor  can  he  be  required  to  see  to  it 
that  the  witness  produces,  at  the  demand  of  the  other  party, 
documents  for  use  by  the  latter  as  part  of  his  proof,  unless  they 
become  so  upon  legitimate  cross-examination  of  the  witness. 
The  application  is  denied. 


Kate  C.  Bouequin. 

V. 
GOEDON   M.  BoUEQUESr. 


Proof  that  a  husband  and  wife  have  lived  separate,  and  that  the  husband 
has  not  supported  his  wife,  does  not  establish  willful,  continued  and  obstinate 
desertion,  so  as  to  authorize  a  divorce. 


Bill  for  divorce. 


8  CASES  IN  CHANCERY.  [33  Eq. 

Bourquin  v.  Bourquin. 

The  Chancellor. 

This  case  comes  before  the  court  ex  parte.  The  bill  alleges 
that  the  defendant  willfully  deserted  the  complainant  in  July, 
1875,  and  that  such  desertion  has  been  obstinately  continued 
ever  since.  The  complainant  swears  that  she  and  her  husband 
boarded  together  at  55  Sands  street,  in  Brooklyn,  on  the  12th 
of  June,  1875,  and  that  he  then  left  her,  but  that  she  remained 
there  till  the  8th  of  December  following.  She  says  he  left  her 
without  any  support,  but,  in  the  next  sentence,  says  that  he  paid 
her  board  up  to  the  8th  of  December,  though  he  did  not  live 
with  her  from  the  12th  of  June.  She  says  she  returned  from 
Brooklyn  to  her  father's  house,  in  Camden,  at  her  husband's 
solicitation,  on  the  8th  of  December ;  that  he  said  that  if  she 
returned  to  Brooklyn,  he  would  pay  her  board  and  all  her  ex- 
penses ;  that  she  returned  to  Brooklyn,  and  went  to  board*  at 
193  Prince  street;  that  he  came  to  see  the  lady  of  the  house,  a 
few  days  after  she  got  there,  about  making  arrangements  to  pay 
her  board ;  that  he  never  came  to  live  with  her  there,  and  did 
not  pay  her  board.  Again,  she  says  that  in  July,  1876,  he 
ceased  to  support  her ;  that  she  again  left  Brooklyn,  on  the  8th 
of  September,  1876,  and  returned  to  Camden,  and  that  she  has 
received  no  support  from  him  since  the  12th  of  July,  1876.  She 
further  says  that  she  has  not  seen  him  since  September,  1876, 
and  yet,  in  a  former  part  of  her  testimony,  she  seems  to  testify 
that  she  has  seen  him  twice  in  the  street  in  Brooklyn.  In  this 
connection,  it  may  be  remarked  that  lier  sister  says  that  the  com- 
plainant has  supported  herself  since  she  returned  home  in  Sep- 
tember, 1876,  and  adds  that  she  has  seen  th6  complainant  and 
defendant  together,  presumably  since  that  date.  Albert  Hughes 
testifies  that  the  defendant  left  the  complainant  in  the  early  part 
of  June,  1875,  and  adds  that  he  does  not  know  that  they  lived 
together  after  that.  He  subsequently,  indeed,  says  positiv^ely 
that  he  knows  that  the  defendant  has  never  returned  to  the  com- 
plainant, and  does  not  now  live  with  her ;  but  how  he  has 
obtained  his  knowledge  on  the  subject  does  not  appear.  In  all 
this  testimony  there  is  no  proof  of  desertion.  The  proof  is  that 
the  parties  have  lived  separate,  and  that  the  defendant  has  not 


6  Stew.]  OCTOBER  TERM,  1880.  9 

Wood  V.  Chetwood. 

supported  his  wife  since  September,  1876.  That  is  not  enough. 
To  entitle  the  complainant  to  a  divorce  on  the  ground  of  deser- 
tion, it  must  appear  that  the  defendant  had  willfully,  continu- 
ously and  obstinately  deserted  his  wife  for  three  years  before  this 
suit  was  begun. 

The  bill  will  be  dismissed. 


Mary  G.  Wood 

V. 

George  R.  Chetwood. 

An  account  of  an  executrix  and  her  husband,  guardian  of  the  share  of  the 
daughter  of  the  former,  was  settled  by  the  daughter  (the  ward)  and  her  husband 
thirty-four  years  before  the  filing  of  the  bill,  which  was  by  the  daughter,  (whose 
husband  was  dead,)  for  an  account  of  her  share.  The  ground  relied  on  waa 
errors  in  the  account  which  was  settled,  and  the  fact  that  the  daughter  was 
when  it  was  settled,  a  minor. — Held,  that  the  claim  was  a  stale  one,  and  that, 
under  the  circumstances,  she  was  bound  by  the  settlement,  notwithstanding  her 
minority. 

Bill  for  an  account.   On  final  hearing  on  pleadings  and  proofs. 

Mr.  W.  J.  Magie,  for  complainant. 

Mr.  F.  H.  Teese  and  Mr.  C.  Parher,  for  defendant. 

The  Chancellor. 

Dr.  Oliver  H.  Spencer,  of  (then)  Elizabethtown  (now  the  city 
of  Elizabeth),  in  this  state,  died  May  19th,  1824,  leaving  a 
widow  and  three  children,  Robert  D.,  Mary  G.  and  Susan  W.  D. 
He  had  property  both  in  Louisiana  and  in  this  state,  and  he  left 
two  wills — one,  the  earlier,  made  in  New  Orleans,  and  the  other, 
supplementary  and  as  a  codicil  thereto,  at  Elizabethtown.  By 
the  former,  he  gave  all  his  property  in  Louisiana  to  his  children 
in  equal  shares,  with  gift  over  in  case  of  the  death  of  all  of  them 


10  CASES  IN  CHANCERY.  [33  Eq. 

Wood  V.  Chetwood. 

without  issue.  By  the  latter,  he  confirmed  the  Louisiana  will, 
and  directed  that  no  part  of  his  estate  should  be  sold,  excepting 
two  certain  lots  in  Elizabethtown,  the  sale  of  which  he  author- 
ized, but  that  it  should  remain  as  it  then  was  until  all  his  chil- 
dren should  have  reached  the  age  of  twenty-one  years.  He  gave 
his  executors  (who  were  his  wife  and  Peter  Kean  and  Oliver  M. 
Spencer)  power  to  sell  those  lots  and  invest  the  proceeds  in 
stocks,  and  to  sell  such  parts  of  his  furniture  or  stock  as  they 
might  think  would  not  be  wanted,  and  to  invest  the  proceeds  of 
the  sales  in  stocks ;  and  he  declared  that  it  was  his  will  that,  in 
case  of  the  remarriage  or  death  of  his  wife,  all  his  plate  and 
household  furniture  of  every  kind  should  be  sold,  as  well  as  all 
his  slaves,  horses,  carriages,  farming  utensils  and  stock  of  every 
description,  and  that  the  proceeds  should  be  invested  in  stocks. 
He  constituted  his  wife  guardian  of  the  persons  and  estates  of 
his  children,  during  their  minority,  and  provided  that,  in  case  of 
her  death  or  remarriage,  Peter  Kean  should  take  her  place. 
After  certain  restrictions  upon  his  wife  as  to  endorsing,  &c.,  in 
and  while  managing  his  estate,  and  making  provision  for  the 
custody  of  the  valuable  papers  of  the  estate,  &c.,  he  gave  direc- 
tion as  to  the  education  of  his  son,  and  ordered  that  he  receive, 
on  arriving  at  his  majority,  $1,000  out  of  his  personal  estate 
and  one  thousand  acres  of  choice  land  in  Ohio,  more  than  his 
other  children.  He  then  gave  to  his  wife,  "for  her  support,  and 
for  the  purpose  of  maintaining  and  educating"  his  "children 
during  their  respective  minorities,  the  use  of  the  whole  of  his 
estate,  both  real  and  personal,"  and  gave  the  residue  to  his  chil- 
dren, to  be  equally  divided  among  them  as  they  should  arrive 
at  the  age  of  twenty-one  years,  or,  in  case  of  marriage,  at  eight- 
een; aud  provided  that,  after  such  division,  his  wife  should 
have  oue-third  of  the  use  of  his  real  estate,  and  the  sum  of  $600, 
to  be  paid  to  her  annually,  in  lieu  of  dower  and  all  other  de- 
mands. 

The  New  Jersey  will  was  proved  by  the  widow  and  Peter 
Kean.  The  other  executor  never,  so  far  as  appears,  acted  as 
such.  In  1828,  Peter  Kean  died.  He  never  accounted  for  his 
administration  of  the  estate.     The  widow  married  the  defend- 


6  Stew.]  OCTOBER  TERM,  1880.  11 

Wood  V.  Chetwood, 

ant,  Dr.  Chetwood,  July  29tli,  1828.  Robert  D.  Spencer  died 
in  1855,  leaving  children.  He  received  his  share  of  the  estate 
in  1835.  The  complainant  attained  her  majority  April  2d, 
1838,  and  her  sister  Susan  in  February,  1840.  The  complain- 
ant was  married  to  William  N.  Wood,  February  22d,  1837.  He 
died  in  1865.  Susan  was  twice  married.  Her  first  husband 
was  Captain  George  H.  Pegram,  and  her  last  Gilbert  R.  Flem- 
ing. He  died  after  the  commencement  of  this  suit.  Mrs. 
Chetwood  is  now  dead  also.  In  1831,  Dr.  Chetwood  was  duly 
appointed  guardian  of  the  complainant  and  her  brother  and 
sister.  An  inventory  of  the  estate  of  the  testator  was  filed  in 
1825,  by  Mrs.  Chetwood  (then  Mrs.  Spencer)  and  Peter  Kean. 
No  account  was  ever  filed ;  but  in  1837,  a  few  months  before  the 
complainant  attained  her  majority,  and  after  her  marriage  to  Mr. 
Wood,  an  account  of  the  amount  due  her  from  the  executors 
was  given  to  him,  at  his  request,  and  a  settlement  was  then 
thereupon  made  by  him  with  Dr.  Chetwood  and  his  wife,  the 
executrix,  of  the  complainant's  share  of  the  estate,  and  a  receipt, 
under  date  of  August  31st,  1837  (the  complainant  came  of  age 
the  2d  of  the  following  April),  written  beneath  the  account,  and 
signed  by  Mr.  Wood  and  the  complainant,  was  given,  by  which 
they  acknowledged  that  they  had  received  from  Mrs.  Chetwood, 
executrix  of  Dr.  Spencer,  and  Dr.  Chetwood,  guardian  of  the 
complainant,  $12,957.90,  by  a  transfer  of  stocks,  assignment  of 
bonds  and  mortgages,  and  a  note  and  draft,  on  account  of  the 
complainant's  share  of  the  personal  estate  of  her  father,  and  that 
the  balance  due,  stated  in  the  receipt  to  be  $3,772.14,  was  to  be 
paid  by  Dr.  Chetwood's  giving  his  bond  (to  be  secured  by  mort- 
gage) therefor,  payable  in  one  year,  with  interest  from  that  date. 
That  balance  was  subsequently  so  secured  and  duly  paid.  Like 
accounts  and  settlements,  with  payment,  were  made  with  the  two 
otiier  children,  Susan  and  Robert,  on  their  marriage  or  attaining 
to  majority.  In  September,  1833,  Dr.  Chetwood,  as  guardian 
of  the  children,  sold  part  of  the  Ohio  land,  in  pursuance  of 
authority  obtained  by  him  from  the  legislature  of  that  state.  The 
price  obtained  was  $9,000.  He  accounted,  in  the  settlements  to 
the  children,  for  their  shares  of  the  proceeds,  after  deducting 


12  CASES  IX  CHANCERY.  [33  Eq. 

"Wood  r.  Chetwood. 

$443.62,  for  the  cost  of  obtaining  the  law  and  commissions,  &c., 
paid  by  him  on  the  sale. 

The  bill  is  filed  to  obtain  an  account  of  part  of  the  complain- 
ant's share  of  the  estate.  It  is  based  on  the  allegation  that  the 
executrix  and  her  husband  ought  to  have  accounted  to  the  chil- 
dren for  all  the  income  of  the  estate  over  and  above  what  was 
necessary  for  her  and  their  support  and  their  education,  after  her 
remarriage,  and  that,  in  the  respects  and  particulars  hereinafter 
mentioned  and  considered,  and  some  others  abandoned  on  the 
hearing,  the  account  of  1837  given  to  Mr,  "Wood  should  be  sur- 
charged and  corrected.  The  complainant  insists  that,  inasmuch 
as  she  was,  at  the  time  of  the  settlement  of  that  account,  a 
minor,  she  is  not  bound  by  it,  and  that  the  receipt  of  her  hus- 
band could  extend  no  protection  to  Dr.  Chetwood  and  the 
executrix  beyond  the  amount  actually  received.  The  executrix 
and  Dr.  Chetwood,  by  their  answer,  deny  the  allegations  of  the 
complainant  as  to  the  alleged  errors,  and  resist  her  claim  to  an 
account ;  and  they  plead,  in  the  answer,  the  great  lapse  of  time 
as  an  equitable  bar.  In  1872,  about  seven  years  after  the  death 
of  her  husband,  the  complainant  cited  Dr.  Chetwood  to  account, 
in  the  orphans  court  of  Essex  county,  as  her  guardian.  He, 
in  December  of  that  year,  filed,  as  his  account,  a  statement  of 
the  settlement  before  mentioned,  and  alleged  that  the  balance 
which  was  then  found  due  from  him  had  been  paid.  In  March 
following,  the  complainant  filed  exceptions  to  the  account,  but 
they  were  not  proceeded  upon,  and  on  the  16th  of  April,  1875, 
tliis  suit  was  begun.  Soon  after  the  citation  out  of  the  orphans 
court  was  served  on  him.  Dr.  Chetwood  left  the  country  and 
went  to  France,  where  he  has  ever  since  resided  and  remained. 

To  consider  the  objections  made  to  the  account  of  1837. 
Though  others  are  stated  in  the  bill,  they,  as  before  stated,  were 
abandoned,  and  those  insisted  on  are  the  following:  That 
neither  the  complainant  nor  her  husband  has  ever  had  an  ac- 
count of  what  she  claims  to  be  her  share  of  the  income  of  the 
estate  after  July  29th,  1828,  the  date  of  the  marriage  of  the 
executrix  to  Dr.  Chetwood ;  that  there  should  have  been  chargeil 
against  the  executrix  the  sum  of  §1,027.40,  which  the  complain- 


6  Stew.]  OCTOBER  TERM,  1880.  13 

"Wood  V.  Chetwood. 

ant  alleges  was  collected  by  the  executrix,  June  24th,  1828,  on  a 
claim  of  the  estate  against  the  estate  of  her  father,  Gen.  Jonathan 
Dayton  ;  that  the  executrix  and  Dr.  Chetwood  have  not  accounted 
for  so  much  money  as  they  ought  in  respect  to  the  Ohio  land  sold 
under  legislative  authority,  as  before  mentioned.  The  complain- 
ant alleges  that  that  property  was  worth  from  $16,000  to  $20,000, 
but  it  was  sold  for  $9,000 ;  and  she  insists  that  it  was  sold  in 
violation  of  duty,  because  the  will  directed  that  it  should  not  be 
sold  until  all  the  children  should  have  attained  their  majority. 
She  further  alleges  that  if  the  conduct  of  the  executrix  and  Dr. 
Chetwood  in  making  the  sale  be  approved,  they  have  not  ac- 
counted for  enough ;  that  they  have  not  accounted  for  all  the 
interest  received  on  certain  notes  made  by  John  Dick,  and  be- 
longing to  the  estate,  nor  for  the  money — $221.77 — which,  at 
the  testator's  death,  stood  to  his  credit  in  his  bank  account  in  the 
State  Bank  at  Elizabeth ;  that  a  charge  of  $200  for  repairs  to  a 
house  called  the  Hale  house,  is  unjust,  because  the  house,  at  the 
date  of  the  charge,  did  not  belong  to  the  estate ;  that  a  charge 
of  $1,960,  for  money  alleged  to  have  been  paid  by  the  executrix 
on  account  of  a  note  held  by  David  Rogers,  is  unjust.  The  com- 
plainant insists  that  the  money  was  paid  by  Gen.  Dayton,  who 
was  liable  as  principal  therefor ;  that  a  charge  for  repairs  to  a 
house  of  the  estate  on  Jersey  street,  in  Elizabeth,  is  unjust,  be- 
cause the  executrix  and  Dr.  Chetwood  occupied  the  house  at  the 
time  of  making  the  repairs  (in  1836),  and  did  not  account  for 
the  rent ;  and  that  the  loss  (it  occurred  in  1835)  on  certain  in- 
surance stock  should  have  been  borne  by  the  executrix  and  Dr. 
Chetwood,  or  one  of  them,  and  not  by  the  estate,  and  the  com- 
plainant insists  that  therefore  the  charge  of  $521.30  against  her 
in  the  account,  in  respect  to  that  loss,  was  erroneous.  She  insists 
that  the  stock  was  the  property  of  Dr.  Chetwood,  and  not  of  the 
estate,  and  that  the  executrix  had  no  authority  to  invest  the 
money  of  the  estate  in  insurance  stock. 

As  to  the  first  of  these  objections :  The  will  gave  to  the  widow, 
for  her  support,  and  for  the  purpose  of  maintaining  and  educat- 
ing the  children  during  their  respective  minorities,  the  use  of  the 
whole  of  the  estate.     It  provided  for  the  payment  to  each  child, 


14  CASES  IN  CHANCERY.  [33  Eq. 

"Wood  V.  Chetwood. 

on  his  or  her  becoming  of  age,  or  in  case  of  marriage,  at 
eighteen,  of  his  or  her  share  of  the  estate,  and  that  after  the 
youngest  had  been  paid,  the  widow  should  have  the  use  of  one- 
third  of  the  real  estate  and  an  annuity  of  $600.  That  is  to  say, 
the  estate,  except  one-third  of  the  real  estate,  to  be  reserved  for 
the  widow  for  life,  and  a  sum  which  would  ])roduce  for  her  a 
life  annuity  of  $600,  was  to  be  divided  among  the  children  as 
they  arrived  at  age  or  were  married,  if  not  under  eighteen.  The 
plan  adopted  in  settlement,  as  to  the  personal  estate,  appears  to 
have  been  to  divide  it,  taking  security  for  the  annuity.  The 
complainant,  then,  if  she  received  the  full  amount  of  her  siiare 
of  the  personal  estate  in  the  settlement  of  1837,  took  away  one- 
third  of  that  estate,  leaving  in  the  hands  of  her  mother  the  other 
two-thirds,  in  which  the  complainant  had  no  interest.  As  to  the 
income  received  from  the  estate  prior  to  that  settlement,  it  was 
clearly,  by  the  terms  of  the  will,  given  to  the  widow  so  long  as 
she  remained  guardian.  And  she  was  not  bound  to  account  for 
it  during  that  time,  so  long  as  she  discharged  the  duty  in  respect 
to  which  it  was  bequeathed  to  her.  Machnet  v.  MacJcnet,  11  C. 
E.  Gr.  258;  S.  C.  on  appeal,  12  C.  E.  Gr.  5H. 

The  will  provided  that  in  case  of  her  remarriage  her  guardian- 
ship should  cease,  and  that  Peter  Kean  should  be  guardian  in 
her  stead.  Peter  Kean,  according  to  the  bill,  died  a  few  months 
after  her  remarriage,  and  he  appears  never  to  have  assumed  any 
duty  as  guardian.  The  widow  continued  her  care  of  the  children 
and  their  education  until  they  attained  their  majority  or  were 
married.  No  question  appears  to  have  been  made  as  to  her  right 
to  the  income  at  any  time,  until  it  was  made  by  the  complainant 
in  1872,  over  thirty  years  after  the  youngest  child  attained  to 
majority.  No  charge  was  made  in  any  of  the  settlements  for  the 
support  or  education  of  the  children,  nor  were  any  commissions 
charged  by  the  executrix  or  guardian.  The  income  may  not 
have  been  in  excess  of  the  amount  which  would  have  been 
allowed  to  the  widow,  under  the  circumstances,  for  the  support 
and  education  of  the  children.  But  however  that  may  be,  no 
account  was,  so  far  as  appears,  ever  even  suggested,  but  the  ap- 
propriation of  the  whole  income,  as  compensation  for  the  support 


6  Stew.]  OCTOBER  TERM,  1880.  15 

Wood  V.  Chetwood. 

and  education  of  the  children,  seems  to  have  been  acquiesced  in. 
It  would,  therefore,  obviously  be  highly  inequitable,  under  such 
circumstances,  after  so  long  a  period  of  acquiescence  and  delay  in 
making  the  claim,  to  require  the  widow,  were  she  living,  to  come 
to  an  account  as  executrix,  or  Dr.  Chetwood  as  guardian,  of  the 
excess  of  income,  if  any  there  was,  over  and  above  what  would 
have  been  allowed  for  support  and  education.  It  would  probably 
be  impossible  to  give  such  an  account.  And  here  it  may  be  re- 
marked that  the  complainant's  interest  in  the  estate  was  looked 
after  by  her  husband,  who  was  a  lawyer  and  abundantly  compe- 
tent to  do  so ;  and,  moreover,  the  share  became  his  own  on  his 
reducing  it  to  possession.  Susan's  first  husband,  too,  was  inter- 
ested in  like  manner  as  to  her  share,  and  it  may  be  presumed  that 
he  looked  after  her  interest  carefully.  Robert  was  a  lawyer.  It 
is  hardly  to  be  supposed  that  this  matter  of  the  right  to  the 
income  did  not  receive  due  attention  in  behalf  of  the  children. 

The  claim  that  certain  money,  alleged  to  have  been  received 
on  account  of  a  demand  of  Dr.  Spencer's  estate  against  that  of 
Gen.  Dayton,  has  not  been  accounted  for,  is  not  sustained.  It 
appears  that  under  an  agreement  of  the  creditors,  or  some  of 
them,  of  the  Dayton  estate,  certain  land  in  Ohio  was  purchased 
for  them  at  the  administrator's  sale  thereof,  and  the  title  taken 
and  held  in  trust  accordingly ;  and  though  $1,027.40  were  re- 
ceipted for  in  the  transaction,  by  the  attorney  of  the  executrix  to 
the  administrator,  as  so  much  money  paid  by  the  latter  to  the 
attorney,  yet  it  appears  to  have  been  receipted  for  as  part  of  the 
purchase  money  of  the  property.  The  account  shows  a  charge 
against  the  executrix  of  $800,  for  money  received  from  the  con- 
veyance of  the  land,  and  $126  for  the  balance  of  the  dividend  of 
twenty  per  cent,  paid  by  Gen.  Dayton's  estate.  There  is  no  evi- 
dence of  any  error  in  this  matter. 

The  sale  of  Ohio  land  owned  by  the  testator  was,  according  to 
the  evidence,  made  at  a  time  when  it  appeared  very  desirable  and 
for  the  interest  of  the  children  as  owners  of  it,  that  it  should 
be  made.  The  price  obtained  was  regarded  as  an  excellent  one 
at  the  time.  There  appears  to  have  been  no  concealment  in  the 
transaction.     Indeed,  it  would  seem  that  concealment,  under  the 


16  CASES  IN  CHANCERY.  [33  Eq 

Wood  V.  Chetwood. 

circumstances,  was  hardly  practicable.  In  the  conveyance  that 
was  made  the  executrix  joined,  to  release  her  dower.  The  prop- 
erty was  sold  in  accordance  with  what  appears  to  have  been  the 
judicious  advice  of  a  competent  and  careful  adviser — it  was  sold 
in  1833 — and  the  proceeds  were  accounted  for  in  the  settlement 
with  the  children.  The  exhibits  in  the  cause  account  for  all  of 
the  $443.62  charged  for  expenses  of  obtaining  the  law  and  com- 
missions for  selling,  except  $108.88.  This  charge  of  $443.62 
was  in  the  account  of  1837,  and  was  of  course  subject  to  scrutiny 
then. 

The  interest  on  the  Dick  notes  appears  to  have  been  accounted 
for  up  to  the  death  of  the  testator,  and  the  interest  which  accrued 
after  that  was  probably  claimed  by  the  widow  as  income  due 
her.  The  money  was  collected  in  1825  and  1826  ;  the  interest 
was  collected  in  the  latter  year,  and  that  was  two  years  before 
her  remarriage. 

The  balance  (said  to  be  $221.77)  of  the  testator's  bank  account 
does  not  appear  to  have  been  accounted  for,  but  it  is  not  in  the 
inventory  which,  according  to  the  bill,  was  made  and  proved  by 
the  executrix  and  Peter  Kean,  and  it  is  not  probable  that  money 
in  bank  was  overlooked  in  making  and  proving  the  inventory. 
It  is  suggested  that  the  money  may  have  been  used  to  pay  funeral 
expenses,  for  which  tliere  is  no  charge  in  the  account.  It  may 
have  been  expended  for  them  and  other  usual  concomitant  family 
expenses.  It  is  also  suggested  that  it  may  have  been  only  an 
apparent  balance,  and  was  exhausted  by  checks  given  by  the 
testator,  but  not  paid  till  after  his  death.  But,  not  to  deal  with 
conjectures,  it  would  have  been  too  much  to  require  the  executrix, 
at  her  advanced  age  when  the  bill  was  filed  (she  appears  to  have 
been  about  eighty-five  years  old  when  this  suit  was  begun),  to 
account  for  or  explain  this.  She  is  now  dead.  Dr.  Chetwood 
is  about  seventy-eight  years  old.  He  is  not  charged  with  knowl- 
edge of  the  matter.  The  inventory  was  made  four  years  before 
he  married  the  widow. 

The  charge  for  repairs  to  the  Hale  nouse  has  not  been  ex- 
plained. It  seems  to  have  been  dated  in  1831,  while  the  deed 
for  the  property  to  Dr.  Chetwood  and  his  wife  is  dated  in  No- 


6  Stew.]  OCTOBER  TERM,  1880.  17 


Wood  V.  diet  wood. 


vember,  1832.  The  property  was  regarded  as  belonging  to  the 
estate,  and  not  only  the  proceeds  of  the  sale  of  it  were  accounted 
for,  but  the  profit  made  upon  it  also.  Certain  it  is  that  this 
charge  of  $200  for  repairs  to  the  Hale  house  was  made  under 
date  of  1831  in  the  account  given  to  Mr.  Wood,  and  if  it  had  been 
so  obvious  a  mistake  as  is  now  contended,  it  must  have  chal- 
lenged his  attention.  It  appears  also  in  the  account  rendered  to 
Susan.  By  one  of  the  exhibits  put  in  by  the  complainant,  the 
repairs  appear  to  have  been,  in  whole  or  in  part,  putting  in  a 
new  front  to  the  house,  painting  it,  and  putting  a  new  roof  on 
the  back  shed.  Though  the  charge  is  not  found  in  the  account 
rendered  to  Robert,  it  appears,  by  a  statement  made  by  Dr.  Chet- 
wood,  given  in  evidence  by  the  complainant,  and  which  came 
from  among  Mr.  Wood's  or  her  sister  Susan's,  or  Dr.  Chetwood's 
papers,  that  it,  with  several  other  payments  there  specified,  was 
overlooked  in  the  settlement  with  Robert. 

It  will  be  convenient  here  to  deal  with  the  objection  made  to 
the  charge  for  repairs  to  the  Jersey  street  house.  That  house 
was  occupied  by  the  widow  when  the  repairs  were  made  (1831), 
and  it  is  insisted  that  she  was  bound  to  make  them  because  she 
had  the  use  of  it,  but — and  this  remark  is  equally  applicable  to 
the  repairs  to  the  Hale  house,  in  respect  to  which  the  same  sug- 
gestion is  made  on  the  ground  that  she  received  tiie  rents — she 
was  not  a  life  tenant,  but  seems  to  have  claimed  to  be  entitled  to 
the  use  of  the  income  of  the  property  for  a  limited  period  (during 
the  minority  of  the  children),  and  that  claim  appears  to  have 
been  allowed,  at  least  by  acquiescence.  What  are  called  repairs 
in  this  instance,  it  may  be  added,  appear  to  be,  in  part  at  least, 
the  building  of  an  ice-house  and  new  fences. 

Dr.  Spencer  was  liable  as  surety  with  his  father-in-law,  Gen. 
Dayton,  on  a  promissory  note  held  by  David  Rodgers.  On  Sep- 
tember 11th,  1824,  the  fall  after  Dr.  Spencer's  death.  Gen.  Dayton 
received  from  his  daughter,  the  executrix,  $1,960  for  investment. 
By  his  receipt  to  her  therefor,  he  promised  to  invest  the  money 
for  her,  as  soon  as  practicable,  in  New  York  state  securities,  or, 
if  the  investment  could  not  be  advantageously  made,  to  return  it 
to  her  on  demand.     Judgment  was  recovered  against  him  and 

2 


18  CASES  IN  CHANCERY.  [33  Eq. 

Wood  V.  Chetwood. 

Dr.  Spencer  by  Rodgers,  on  the  note,  in  the  supreme  court  of 
this  state,  May  13th,  1823.  On  the  13th  of  September,  two 
days  after  he  received  the  $1,960  for  investment,  he  paid  exactly 
that  sum  of  money  to  Rodgers's  attorney,  on  account  of  the  judg- 
ment. If  the  money  so  paid  was  hers,  and  it  was  applied  by  her 
father,  with  her  consent,  to  the  payment  of  the  judgment,  it  was 
a  payment  by  the  executrix  for  Dr.  Spencer's  estate.  The  claim 
was  made  in  the  account  delivered  to  Mr.  "Wood,  and  it  is  to  be 
found  in  those  delivered  to  and'settled  by  Susan  and  Robert.  In 
the  account  delivered  to  Robert  it  is  under  the  date  of  September 
11th,  1824,  the  date  of  Gen.  Dayton's  receipt  to  Mrs.  Chetwood, 
and  it  is  specifically  charged  as  a  payment  by  her  to  Rodgers. 
It  would  be  enough  to  say,  however,  that  it  is  not  only  not  estab- 
lished that  she  did  not  pay  the  money,  but  the  circumstantial 
evidence  indicated  that  she  did.  The  charge  for  loss  on  stock 
of  the  Equitable  Insurance  Company  seems  to  have  been  dis- 
cussed between  Mr.  Wood  and  Dr.  Chetwood,  and  they  appear 
to  have  submitted  the  question  to  Theodore  Frelinghuysen  for 
his  opinion.  He  gave  it,  under  date  of  August  7th,  1837  (the 
receipt  from  Mr.  and  Mrs.  Wood  is  dated  August  31st,  1837, 
and  the  opinion  therefore  preceded  it),  to  the  effect  that  any  losses 
which  had  been  sustained  in  insurance  stock,  by  reason  of  the 
then  late  great  fire  in  the  city  of  New  York,  should  fall  on  the 
estate,  and  not  on  the  executrix.  The  will  directed  that  certain 
funds  should  be  invested  in  stocks.  It  is  said  that  no  charge  for 
this  loss  is  made  in  the  account  rendered  to  Robert,  but  the  paper 
which  is  treated  as  being  that  account  is  dated  in  November, 
1835,  and  his  receipt  for  his  share  is  dated  the  11th  of  that 
month.  The  fire  had  not  then  taken  place;  it  occurred  in 
December  following.  The  stock  is  put  down  as  part  of  the  assets 
in  that  account.  The  question  of  the  propriety  of  the  investment 
in  insurance  stock  was  submitted  to  Mr.  Frelinghuysen,  and  de- 
cided by  him  then,  before  the  settlement  of  1837  was  made,  and 
his  decision  was  acquiesced  in  and  submitted  to  by  Mr.  Wood. 
According  to  the  inventory  and  the  account  rendered  to  Mr. 
Wood,  the  estate  owned  but  forty-three  shares  of  the  stock  of  the 
State  Bank  at  Elizabeth.     The  complainant,  however,  insists  that 


6  Stew.]  OCTOBER  TERM,  1880.  19 

Wood  V.  Chetwood. 

there  were  sixty-three,  and  that  Dr.  Chetwood  should  account  for 
the  difference.  It  appears  by  the  books  of  the  bank  that  at  the 
death  of  the  testator  there  were  sixty-three  shares  standing  in  his 
name,  and  that  in  September,  1824,  twenty  shares  were  trans- 
ferred to  Caleb  Halstead,  jun.  It  also  appears  thereby,  that  in 
August,  1822,  Halstead  transferred  twenty  shares  to  Dr.  Spencer. 
It  is  not  necessary  to  query  whether  the  latter  were  assigned  to 
the  testator  as  collateral  security  for  a  debt  subsequently  paid,  or 
were  held  by  him  in  trust,  or  to  conjecture  what  is  the  reason  ot 
the  discrepancy.  It  existed  when  the  account  was  delivered  to 
Mr.  Wood.  In  that  account,  and  in  the  other  accounts,  it  is 
said  that  of  that  stock  the  estate  held  only  forty-three  shares. 
The  inventory  was  not  made  by  Dr.  Chetwood,  but  by  Peter 
Kean  and  the  widow.  They  probably  believed  it  to  be  correct, 
and  had  good  reason  for  the  statement  that  the  estate  owned  only 
forty-three  shares  of  the  stock.  Verification  of  the  inventory 
and  accounts  in  this  respect  was  easy,  and  it  may  be  assumed 
that  in  this  matter  the  discrepancy  was  known  and  satisfactorily 
accounted  for. 

I  have  thus  considered  the  various  reasons  which  are  given 
by  the  complainant  for  requiring  an  account,  and  I  do  not  find 
that  any  of  them  would  justify  such  a  requirement.  There  is  no 
evidence  of  any  fraud  or  concealment ;  on  the  contrary,  every- 
thing appears  to  have  been  open  to  inquiry.  The  accounts  ren- 
dered to  the  children  were  subject  to  the  scrutiny  of  persons  who 
were  most  competent  to  make  the  examination.  Not  one  only, 
but  two  lawyers  were  directly  and  personally  interested  in  the 
settlements.  The  shares  for  which  account  was  made  to  them 
wholly  belonged  to  them,  and  each  appears  to  have  made  the 
settlement  for  himself.  Each  settlement  necessarily  involved  an 
account  of  the  estate.  The  advice  of  Mr.  Frelinghuysen  appears 
to  have  been  sought  and  obtained  in  reference  to  the  account  of 
the  complainant's  share,  and  it  would  seem  that  the  disputed 
questions  were  submitted  to  his  decision.  The  fact  that  there 
were  such  questions  is  evidence  that  the  account  was  closely  scru- 
tinized. On  the  19th  of  January,  1838,  another  statement  was 
made  by  Dr.  Chetwood  for  Mr.  Wood,  and  annexed  to  it  was  a 


20  CASES  IX  CHANCERY.  [33  Eq. 

Wood  V.  Chetwood. 

receipt  which  recited  that  by  a  statement  of  the  accounts  of  tlie 
executrix,  and  of  Dr.  Chetwood,  the  guardian  of  Mrs.  "Wood, 
there  appeared  to  be  due  to  Mrs.  Wood  $16,511.21,  and  it  was 
thereby  certified  that  that  sum  had  been  i)aid  to  Mr.  and  Mre. 
Wood  by  the  assignment  of  certain  securities  and  payment  of 
cash,  &c.,  and  the  giving  of  a  bond  and  mortgage.  And  further, 
that  the  receipt  of  August  31st,  1837,  had  been  given.  It  will 
be  seen  that  the  receipt  is  to  the  guardian  as  well  as  the  execu- 
trix. The  husband,  Mr.  Wood,  was  entitled  to  the  share  of  his 
wife,  if  in  the  hands  of  either  of  them.  He,  being  entitled  to  the 
property,  was  the  proper  person  to  demand  and  have  an  ac- 
count of  it ;  and  being  so,  his  wife,  though  a  minor  at  the  time 
of  the  accounting,  is  bound  by  the  account  to  the  same  extent 
that  he  would  be.  It  is  not  a  question  whether  the  husband 
could  release  the  demand  of  the  wife  without  receiving  satisfac- 
tion for  it,  but  whether  an  account  was  made  to  and  settled  by 
a  person  legally  authorized.  If  it  was,  then  the  further  question 
is  whether  this  court  will,  after  the  lapse  of  over  forty  years, 
open  the  account.  It  is  at  least  doubtful  whether  there  is  any 
error.  And  the  presumption  from  the  circumstances,  the  excel- 
lent capacity  of  him  who  made  the  settlement  on  behalf  of  the 
complainant,  the  care  and  circumspection  which  he  evidently  ex- 
ercised in  making  it,  and  the  acquiescence  in  it  by  him  for  the 
rest  of  his  life,  twenty-eight  years,  and  by  the  complainant  for 
thirty-four  years,  is  that  the  account  was  satisfactorily  settled. 
The  complainant's  claim  must  be  regarded  as  a  stale  and  anti- 
quated one,  such  as  this  court  does  not  favor,  but,  on  the  other 
hand,  discourages.  As  before  stated,  she  acquiesced  for  thirty- 
four  years.  Her  sister  Susan  does  not  appear  to  have  ever  been 
dissatisfied  with  the  account,  and  Robert  lived  twenty  years  after 
the  account  with  him  was  settled,  and  he  never,  so  far  as  is 
shown,  questioned  its  correctness.  The  impolicy  as  well  as  the 
injustice  of  requiring  an  account  after  so  long  a  period  of  acquies- 
cence, is  illustrated  in  this  case.  In  1872  the  alleged  errors  of 
which  the  complainant  complained,  and  to  which  she  asked  Dr. 
Chetwood's  attention,  were  only  an  overcharge  of  the  value  of 
stock  of  the  State  Bank  at  Xewax'k,  belonging  to  the  estate,  the 


6  Stew.]  OCTOBER  TERM,  1880.  21 


Wood  V.  Clietwood. 


non-allowance  to  her  of  a  share  of  the  profits  of  the  sale  of  the 
Hale  house,  and  the  non-allowance  of  any  part  of  the  income  of 
the  estate  during  the  minority  of  the  children.  Tlie  first  was 
explained  by  the  books  of  the  bank,  and  the  existence  of  error 
disproved.  The  profits  on  the  sale  of  the  Hale  house  were,  in 
fact,  allowed  in  the  account.  In  the  bill  in  this  cause  it  is  claimed 
that  there  should  be  an  account  of  $3,024.88  for  nineteen  shares 
of  the  stock  of  the  Bank  of  Kentucky,  and  the  dividends  thereon, 
and  of  $800  received  from  the  sale  of  the  Hatfield  property 
mentioned  in  the  will ;  but  both  of  those  claims  were  abandoned 
on  the  hearing.  The  estate  is  credited  in  the  account  with  the  pro- 
ceeds of  the  sale  of  the  Hatfield  lot,  and  the  complainant  admits 
that  she  was  also  in  error  as  to  the  Kentucky  Bank  stock.  "  It  is 
an  inherent  doctrine  of  this  court,"  says  Story,  "  not  to  entertain 
stale  or  antiquated  demands,  and  not  to  encourage  laches  and  negli- 
gence. Hence,  in  matters  of  account,  although  not  barred  by  the 
statute  of  limitations,  courts  of  equity  refuse  to  interfere  after  a  con- 
siderable lapse  of  time,  from  considerations  of  public  policy,  from 
the  difficulty  of  doing  entire  justice  when  the  original  transac- 
tions have  become  obscure  by  time,  and  the  evidence  may  be  lost, 
and  from  the  consciousness  that  the  repose  of  titles  and  the 
security  of  property  are  mainly  promoted  by  a  full  enforcement 
of  the  maxim,  "  Vigilantibus  non  dormientibiLS,  jura  subveniunt." 
Story's  Eg.  Jur.  §  o29 ;  and  see  Peacock  v.  Newbold,  S  Gr.  Ch. 
61;  Barnes  v.  Taylor,  IS  C.  E.  Gr.  259.  In  the  case  in  hand 
the  justice  of  that  doctrine  and  the  propriety  of  its  application 
are  manifest.  The  executrix,  when  she  was  examined,  M'as  in 
extreme  old  age ;  she  was  over  eighty-five  years  old.  She  de- 
clined to  be  cross-examined,  pleading  want  of  memory ;  and  the 
complainant  testified,  in  less  than  a  year  afterwards,  in  this  suit, 
that  her  mother's  mind  was  almost  gone.  Dr.  Chetwood  is,  as 
before  stated,  seventy-eight  years  old.  The  complainant  has  had 
the  benefit  of  all  his  papers,  obtained  from  his  wife  during  his 
absence  in  France,  and  she  has  had  another  unusual  advantage  in 
the  possession  of  the  accounts  delivered  to  Susan  and  Robert. 
She  has  not  been  able  to  show  any  fraud,  and  has  not  made  such 


22  CASES  IN  CHANCERY.  [33  Eq. 

Zabriskie  v.  Morris  and  Essex  E.  E.  Co. 

proof  of  any  error  as  to  overcome  the  presumptions  which  equity 
raises  under  the  circumstances. 

The  bill  will  be  dismissed,  with  costs. 


Lansing  Zabriskie 

V. 

The  Morris  and  Essex  Railroad  Co. 

A  trust  to  sell  or  improve  lands  ;  to  invest  and  re- invest  the  proceeds  ;  to 
collect  rents  and  income ;  to  pay  taxes,  assessments,  commissions,  and  other 
annual  expenses  and  charges ;  to  pay  over  the  net  income,  and  to  divide  the 
estate,  vests  a  fee  simple  title  in  the  designated  trustees,  not  limited  to  the 
lifetime  of  the  donor's  children,  which  trust  descends  to  the  heir  at  common 
law,  the  eldest  son  of  the  survivor  of  the  trustees,  and  his  contract  to  sell  lands 
of  the  estate  may  be  specifically  enforced. 


Bill  for  specific  performance. 
Mr.  L.  Zabriskie,  p'o  seipso. 
Mr.  J.  D.  Bedle,  for  defendant. 

The  Chancellor. 

By  an  agreement  in  writing  duly  made  between  the  parties  in 
October,  1878,  the  defendant  agreed  to  purchase  of  the  com- 
plainant two  plots  of  laud  in  Hudson  county,  on  his  making  and 
delivering  to  it  a  good  and  sufficient  deed  of  conveyance  therefor, 
vesting  in  it  4i  title  in  fee  simple,  free  from  all  encumbrances,  and 
he,  on  his  part,  agreed  to  sell  and  convey  the  property  to  the 
defendant  for  the  price  stipulated,  so  soon  as  he  could  make  such 
title.  The  land  was  the  property  of  John  Tonnele  at  the  time 
of  his  death,  and  the  complainant  claims  title  thereto  under  Mr. 
Tonnele's  will,  as  the  heir  at  common  law  of  his  father,  the  late 


6  Stew.]  OCTOBER  TERM,  1880.  23 

Zabriskie  v.  Morris  and  Essex  K.  R  Co. 

Abraham  O.  Zabriskie,  whose  eldest  son  he  is,  and  wlio  was  the 
last  survivor  of  the  executors  and  trustees  under  that  instrument. 
The  question  presented  for  decision  is  whether  he  indeed  has 
such  title.  Mr.  Tounele  died  in  1852.  By  his  will,  after  mak- 
ing certain  specific  devises  and  bequests,  he  gave,  devised  and 
bequeathed  all  the  rest  and  residue  of  his  property,  real  and  per- 
sonal, to  his  eight  children,  to  be  equally  divided  among  them  in 
such  manner  that  each  child  should  receive  only  the  net  rents, 
income  and  profits  of  his  or  her  share  during  his  or  her  life;  and 
he  provided  that  at  the  death  of  each  child,  his  or  her  share 
should  go  to  and  vest  in  his  or  her  lawful  issue ;  and  in  default 
of  such  issue  living  at  his  or  her  death,  then  to  the  testator's 
other  children  and  their  issue  in  the  same  manner  as  the  share  of 
each  was  thereby  limited  and  given :  the  children  of  any  de- 
ceased child  to  take  their  parents'  share.  And  in  order  more 
fully  to  carry  out  the  objects  of  the  will  he  appointed  and  de- 
clared his  executors  to  be  trustees  of  all  property,  estate  or  inter- 
est therein  given  or  devised  to  any  of  his  children,  or  that  any 
of  his  children  might  he  entitled  to  by  virtue  of  any  provision  of 
the  will  during  the  life  of  such  child ;  with  full  power  to  retain 
all  such  property  in  their  hands  unsold  and  undivided  until 
after  the  year  1867;  and  he  thereby  authorized  them  to  sell  and 
convey  all  or  any  part  of  his  real  estate,  and  all  real  estate  that 
might  be  purchased  by  them,  and  to  invest  his  personal  estate 
and  the  proceeds  of  sale  of  his  real  estate  at  interest  on  bond  and 
mortgage  or  in  government  or  state  stocks,  or  to  lay  them  out  in 
the  improvement  of  his  real  estate,  or  the  purchase  of  other  real 
estate  and  the  improvement  thereof,  as  might  seem  most  for  the 
interest  and  advantage  of  his  chiklren,  and  for  the  improvement 
of  his  estate,  and  to  change  such  investments  as  they  should  deem 
best  from  time  to  time.  And  he  thereby  ordered  and  directed 
them  to  pay  over  to  each  of  his  children  during  his  or  her  natu- 
ral life,  the  net  income  of  that  part  or  portion  of  his  estate  therein 
given  or  devised  to  such  child,  after  deducting  therefrom  all 
taxes,  assessments  and  commissions  and  other  annual  expenses 
and  charges ;  the  income  of  each  of  his  daughters  to  be  paid  to 
her  on  her  own  receipt,  for  her  own  use,  free  from  the  control  of 


24  CASES  IN  CHANCERY.  [33  Eq. 

Zabriskie  v.  Morris  and  Essex  K.  K.  Co. 

any  husband ;  and  tliat  of  his  son  to  be  paid  to  him  on  his  own 
receipt,  and  not  to  any  assignee  or  mortgagee  thereof.  He  ap- 
pointed his  wife  and  Robert  Gilchrist  and  Abraham  O.  Zabriskie 
executors.  They  all  proved  the  will,  and,  as  before  stated,  they 
are  all  dead,  Mr.  Zabriskie  being  the  last  survivor. 

By  the  will  the  testator  gave  to  his  executors  as  trustees  such 
control  over  the  property,  real  and  personal,  given  to  his  children 
by  the  residuary  clause,  as  to  necessitate  the  implication  that  he 
designed  to  give  them  the  fee  of  the  land.  He  expressly  consti- 
tuted and  declared  them  to  be  trustees  of  the  property.  He  em- 
powered them  to  retain  the  real  estate  unsold  and  undivided 
until  after  1867.  As  before  stated,  he  died  in  1852.  He  au- 
thorized them  to  sell  and  convey  all  or  any  part  of  the  real  estate 
and  all  that  they  might  buy,  and  invest  the  proceeds  in  certain 
stocks,  or  in  the  purchase  of  other  real  estate,  or  in  the  improve- 
ment of  his  real  estate,  as  they  might  think  most  for  the  advan- 
tage of  his  children  and  the  improvement  of  his  estate,  and  to 
change  the  investments  from  time  to  time.  And  he  directed 
them  to  pay  over  to  each  of  his  children,  during  his  or  her  life, 
the  net  income  of  the  part  or  proportion  of  the  estate  given  or 
devised  to  him  or  her,  after  deducting  therefrom  all  taxes,  as- 
sessments, commissions  and  other  annual  expenses  and  charges. 
The  authority  to  divide  the  land  among  the  children  implies  the 
gift  of  a  fee.  How  were  the  trustees  to  divide  it  unless  they 
had  the  power  to  convey  ?  No  express  power  to  lease  is  given; 
but  they  are  to  pay  over  to  each  child,  during  his  or  her  life,  the 
net  income  of  his  or  her  share  of  the  estate,  real  as  well  as  per- 
sonal, and  that,  too,  after  deducting  not  only  annual  taxes,  but 
municipal  assessments  and  commissions  and  other  annual  ex- 
penses and  charges,  whatever  they  might  be.  The  power  to  sell 
and  convey  all  his  land  and  buy  other  land  with  the  proceeds 
and  take  the  title  in  their  own  names,  is  undoubtedly  given. 
They  might  sell  some  of  his  land  and  spend  the  proceeds  in  im- 
proving the  rest  or  any  part  of  it.  In  short,  complete  power  is 
given  to  convert  the  land  into  money,  and  to  make  such  dispo- 
sition of  the  proceeds  in  expenditures,  in  improvements  or  in  in- 
vestments, as  they  might  see  fit.     This  exteasive  authority  is 


6  Stew.]  OCTOBER  TERM,  1880.  25 

Zabriskie  v.  Morris  and  Essex  R.  E.  Co. 

utterly  incompatible  with  the  exercise  of  any  control  over  the 
property  by  the  children.  They  cannot  sell  or  convey  or  encum- 
ber it.  They  are  entitled  to  no  control  over  it,  indeed,  so  long 
as  they  live ;  for  the  trust  is  to  pay  to  them  the  net  rents  and 
income  for  life.  To  the  execution  of  such  a  trust  as  that  under 
consideration,  it  is  necessary  that  the  trustee  be  clothed  with  the 
title  in  fee.  Though  the  express  devise  is  to  the  children  them- 
selves and  there  is  no  express  devise  to  the  trustees,  that  will  not 
prevent  the  implication  of  the  gift  of  the  fee  to  the  latter ;  for  a 
direct  devise  may,  by  the  context,  be  shown  not  to  give  the  legal 
estate  to  the  devisee  named,  and  the  legal  estate  may,  if  the  pur- 
poses of  the  will  require  it,  be  held  to  be  in  trustees.  In  Brew- 
ster V.  Striker,  2  N.  Y.  19,  there  was  a  devise  to  grandchildren 
and  their  heirs  forever,  with  direction  that  the  estate  be  "  dis- 
posed of"  by  the  executors  and  the  survivor  of  them  and  the  ex- 
ecutors or  administrators  of  the  survivor,  not  by  sale  or  alien- 
ation, which  were  forbidden,  but  by  lease ;  the  rents,  issues  and 
profits  to  be  paid  to  the  "  heirs  "  (grandchildren)  annually ;  and 
it  was  also  provided  that  if  any  of  the  heirs  or  their  children 
should  choose  to  occupy  any  part  of  the  property,  they  were  to 
be  preferred  as  tenants.  By  a  subsequent  clause  it  was  declared 
that  if  any  of  the  grandchildren  should  die  without  issue,  the 
share  of  such  decedent  should  go  to  the  survivors  or  survivor  and 
the  heirs  of  the  survivor  forever.  It  was  held  that  the  trustees 
took  the  legal  estate  by  implication  during  the  lifetimes  of  the 
grandchildren.  See  also  Doe  v.  Willan,  2  B.  &  Aid.  84-,  and  Doe 
V.  Cafe,  7  Exch.  675.  It  is  not  necessary,  however,  to  cite  au- 
thorities for  so  obvious  a  proposition,  resting,  as  it  does,  on  the 
familiar  principle  that  in  testamentary  dispositions  the  intention 
of  the  testator  is  to  be  sought  for,  and,  when  found,  is  to  control 
the  construction.  That  the  testator's  intention  was  to  create  a 
trust,  and  that  one  was  created  accordingly  admits  of  no  doubt. 
The  trust  is  to  sell,  to  improve,  to  invest  and  re-invest,  to  collect 
rents  and  income,  to  pay  taxes  and  commissions,  assessments  and 
otner  annual  expenses  and  charges,  to  pay  net  income  over,  and 
to  divide  the  estate.  The  authority  given  is  not  a  mere  power 
of  disposition  which  may  be  executed  without  any  legal  title,  but 


26  CASES  IN  CHANCERY.  [33  Eq 

ZabrJskie  v.  Morris  and  Essex  K.  E.  Co. 

a  trust  of  such  a  character  as  renders  it  necessary  that  the  legal 
estate,  the  title  in  fee  to  the  property,  should  be  in  the  trustees. 
"  The  mere  fact,"  says  Mr.  Jarnian,  "  that  the  trustees  are  made 
agents  in  the  application  of  the  rents,  is  sufficient  to  give  them 
the  legal  estate ;  as  in  the  case  of  a  simple  devise  to  A  upon  trust 
to  pay  the  rents  to  B.  And  it  is  immaterial  in  such  a  case  that 
there  is  no  direct  devise  to  the  trustees,  if  the  intention  that  they 
shall  take  the  estate  can  be  collected  from  the  will.  Hence  a 
devise  to  the  intent  that  A  shall  receive  the  rents  and  pay  them 
over  to  B,  would  clearly  invest  the  legal  estate  in  A."  2  Jarm.  on 
Wills  SOI.  See  also  Hawk,  on  Wills  UO  ;  Hill  on  Trustees  281, 232, 
and  Perry  on  Trusts  §  213.  Nor  can  the  purposes  of  the  will 
in  this  case  be  answered  by  confining  the  legal  estate  to  the  life- 
time of  the  children ;  for  the  trustees  have  power  to  lease  and  to 
sell  and  convey ;  and  where  a  devise  to  trustees  upon  trusts 
which,  standing  alone,  would  not  vest  in  them  the  whole  legal 
estate,  is  followed  or  accompanied  by  a  power  to  sell,  lease  or 
mortgage  not  limited  to  the  period  of  the  continuance  of  the 
active  trusts,  the  trustees  are  held  to  take  the  whole  legal  fee,  and 
not  a  mere  limited  estate,  with  a  superadded  power  of  sale,  mort- 
gage or  leasing.  Hawk,  on  Wills  153 ;  Barker  v.  Greenwood,  If. 
M.  &  W.  Ji^l.  Not  to  speak  of  other  considerations,  it  was 
necessary  that  the  trustees  have  power  and  authority  to  sue  in 
their  own  names  for  injuries  to  the  real  estate,  and  to  establish 
title  thereto  as  against  adverse  claimants,  and  that  in  making  im- 
provements, whether  by  the  erection  of  buildings  or  otherwise, 
they  should  have  the  legal  ownership  of  the  property  improved. 
The  case  is  obviously  to  be  distinguished  from  those  of  which 
Gesi  V.  Flock,  1  Gi\  Ch.  108,  and  Iloores  v.  Moores,  12  Vr. 
44-0,0X6  examples;  for  in  them  the  gift  was  of  a  mere  power 
W'hich  could  be  exercised  without  any  estate  in  the  donee  thereof. 
In  the  case  under  consideration,  at  the  death  of  the  last  survivor 
of  the  trustees,  the  trust  still  existed  and  was  to  continue  as  to 
the  payment  of  the  income  to  the  children  during  the  lives  of  the 
latter.  The  power  (it  was  more ;  it  was  a  trust)  to  convert  that 
part  of  the  real  estate  of  which  the  testator  died  seized,  wRich 
was  still  unsold,  remained,  and  it  was  coupled  with  a  duty  to  in- 


6  Stew.]  OCTOBER  TERM,  1880.  27 

Carpenter  v.  Hoboken. 

vest  and  husband  the  proceeds  in  case  of  conversion,  and  pay- 
over  the  net  income  or  make  improvements  with  them,  if  the 
trustee  deemed  best ;  and  the  trust  to  make  division  of  it  with 
Ihe  rest  of  the  estate,  if  it  remained  unsold  at  the  time  of  division, 
still  continued.  To  the  execution  of  this  ample  and  extensive 
trust,  co-extensive  with  complete  ownership,  an  estate  in  fee  in 
the  trustee  was  not  only  convenient,  but  necessary.  Nothing 
less  would  satisfy  the  trust.  He,  therefore,  had  such  title.  The 
last  survivor  did  not  devise  the  land.  By  law  his  estate  therein 
descended  to  his  heir  at  the  common  law,  his  eldest  son,  the 
complainant,  who,  therefore,  can  convey  it  in  fee  to  the  defend- 
ant. Schenck  v.  Schenck,  1  C.  E.  Gr.  174- ;  Wills  v.  Cooper,  1 
Dutch.  137 ;  Boston  FmnkUnite  Co.  v.  Condit,  4,  C.E.  Gr.  394; 
Rev.  p.  1224,  tit.  Trustees,  §  1. 
There  will  be  a  decree  for  specific  performance. 


Nettie  Caepenter  and  others 

V. 

The  Mayor  ksd  Council  of  the  City  of  Hoboken 
and  others. 

1.  A  statutory  lien  on  lands  for  annual  water-rents  cannot  be  extended  by 
construction  so  as  to  include  water  furnished  by  the  city  commissioners  under 
a  contract  with  a  tenant  for  years ;  and  hence  a  sale  of  the  premises  occupied 
by  such  tenant,  for  default  in  paying  such  water-rents,  is  ultra  vires,  and  may 
be  set  aside  on  application  of  the  owner. 

2.  Where  the  authority  of  the  commissioners  is  terminated  by  their  assess- 
ment and  return  to  the  common  council,  they  are  unnecessary  parties  to  a  suit 
to  set  aside  a  sale  of  lands  ordered  by  the  common  council  and  predicated  on 
their  proceedings. 

Bill  to  remove  cloud  from  title.  On  bill  and  answer  of  the 
mayor  and  council,  and  replication  thereto,  and  proof  taken 
under  the  issue  so  joined,  and  plea  of  the  water  commissioners 
of  the  city  of  Hoboken,  and  agreement  of  counsel. 


28  CASES  IN  CHANCERY.  [33  Eq. 

Carpenter  v.  Hoboken. 

3fi'.  J.  C.  Besson,  for  complainants. 
Mr.  M.  W.  NiveUf  for  defendants. 

The  Chakcelloe. 

The  bill  is  filed  to  remove  from  the  complainant's  title  to  land 
in  Hoboken  the  cloud  cast  thereon  by  two  sales  thereof  by  the 
city  (at  both  of  which  it  was  itself  the  purchaser  for  two  terms 
of  one  hundred  years  each),  for  the  non-payment  of  the  price 
assessed  against  the  property  for  water  furnished  by  the  water 
commissioners  of  the  city  of  Hoboken  to  Alexander  Feyle,  the 
complainant's  tenant  of  the  premises.  The  suit  is  brought 
against  the  water  commissioners,  as  well  as  the  city,  and  the 
relief  prayed  is  the  avoidance  and  cancellation  of  the  charges 
made  against  the  property  by  the  commissioners,  the  annulment 
of  the  sales  and  the  cancellation  of  the  record  thereof.  The  city 
has  answered,  insisting  on  the  validity  of  the  lien  and  sales,  and 
the  commissioners  have  pleaded. 

No  warrant  or  authority  of  law  is  to  be  found  for  the  charges 
in  question  and  the  consequent  proceedings  thereunder.  By  the 
act  of  March  27th,  1859,  (P.  L.  of  1859  p.  4BS),  a  lien  for  annual 
water-rents,  to  be  fixed  from  time  to  time  by  the  commissioners, 
is  created,  and  provision  is  made  for  the  enforcement  thereof  by 
sale  of  the  property  whereon  it  is  charged.  But  no  other  or 
further  lien  or  charge  on  the  land  is  authorized  thereby.  In  the 
case  in  hand,  the  annual  water-rents  have,  it  is  alleged  by  the 
bill  and  admitted  by  the  answer,  been  duly  paid,  and  no  lien  is 
claimed  for  or  in  respect  to  them,  but  the  lien  is  claimed  on  ac- 
count of  water  furnished  to  the  yearly  tenant  by  the  commis- 
sioners, under  a  contract  between  him  and  them.  For  the 
recovery  of  the  money  due  for  that  water,  the  commissioners 
might,  under  the  act,  maintain  an  action  agaifist  the  tenant,  "^ut 
no  lien  or  sale  of  the  property  of  the  complainants  therefor  is 
authorized.  All  the  proceedings  called  in  question  by  this  suit 
are  ultra  vires,  and  therefore  null  and  void,  and  should  be  so  de- 
clared. The  water  commissioners  have  pleaded  that  they  have 
no  interest  in  the  land  or  in  the  sale  thereof,  and   have  no  claim 


6  Stew.]  OCTOBER  TEUM,  1880.  29 

Carpenter  v.  Hoboken. 

thereon,  and  that  all  of  their  interest  ceased  when  they  made 
return  of  the  assessment  to  the  mayor  and  common  council,  as 
set  forth  in  the  bill.  The  plea  is  set  down  for  argument  at  the 
final  hearing,  on  the  agreement  that  if  it  be  held  bad  a  decree 
shall  be  entered  against  the  commissioners,  as  well  as  the  city,  in 
case  it  be  held  that  the  proceedings  complained  of  in  the  bill  are 
null  and  void  ab  initio,  the  question  involved  being  a  mere  ques- 
tion of  law.  The  bill  states  that  the  commissioners,  unlawfully 
and  without  any  authority  from  the  complainant,  charged  against 
the  latter  the  amounts  due  the  commissioners  from  the  tenant,  in 
the  same  manner  as  if  they  had  been  for  water-rents  lawfully 
assessed  on  the  property.  By  the  act  the  commissioners  are  di- 
rected, from  time  to  time,  to  fix  a  sum  to  be  assessed  annually 
upon  all  vacant  lots  and  lots  with  buildings  thereon  in  the  city 
in  which  Passaic  water  is  not  taken,  and  also  upon  lots  or  build- 
ings where  the  water  is  taken,  if  the  same  are  situated  on  any 
road,  street,  avenue,  lane,  alley  or  court  in  the  city  through  or 
in  which  pipes  for  distributing  the  water  are  laid,  which  prices 
and  sums  so  fixed  and  assessed  are  to  be  denominated  water- 
rents  ;  that  the  water-rents  and  penalties  for  delaying  payment 
beyond  the  time  fixed  shall,  until  paid,  be  a  lien  on  the  property 
charged  therewith ;  and  that  the  commissioners  shall,  on  and 
after  a  day  specified  in  the  act,  in  each  year  deliver  to  the  mayor 
and  common  council  of  the  city  a  certified  account  of  the  water- 
rents  and  penalties  unpaid,  and  that  they  shall  be  collected  for 
the  commissioners  by  the  means  employed  by  the  city  for  the 
collection  of  taxes.  The  action  of  the  commissioners  with  re- 
spect to  the  lien  terminates  on  the  delivery  of  the  statement  in 
the  act  called  *'  the  account "  of  their  assessment ;  and  this  state- 
ment or  account  is  the  record,  and  so  far  as  the  requirements  of 
the  act  are  concerned,  the  only  record,  of  the  assessment.  The 
commissioners  are»not  necessary  parties  to  this  suit.  They  have 
no  interest  in  the  event  of  it,  nor  are  they  necessary  to  the  relief 
souglit.  The  assessment  was,  indeed,  made  by  them,  and  not  by 
the  mayor  and  council ;  but  that  does  not,  of  itself,  give  the 
complainant  a  right  to  compel  them  to  answer.  Commissioners 
by  whom  an  assessment  is  made  under  appointment  by  a  munici- 


30  CASES  IN  CHANCERY.  [33  Eq. 

James  v.  Lane. 

pal  body  for  the  cost  of  municipal  improvements,  are  not  proper 
parties  to  a  bill  to  remove  a  cloud  on  title  created  by  their  action 
in  making  the  assessment ;  and  the  commissioners  in  this  case 
stand  in  a  like  relation.  No  decree  can  be  made  against  them. 
They  claim  no  lien  by  virtue  of  their  assessment ;  nor  do  they 
hold  any  record  of  lien — that  is  held  by  the  mayor  and  common 
council.  They  have  no  interest  whatever  in  the  subject  of  this 
controversy.  The  complainant's  property  was  sold  to  the  city 
for  terms  of  years,  to  pay  the  assessments,  and,  under  the  act, 
the  amount  for  which  it  was  sold  was  immediately  payable  to 
the  commissioners  out  of  the  city  treasury.  It  cannot  be  re- 
covered back  from  them.  They  are  a  mere  department  of  the 
municipal  government.  As  to  the  grounds  or  elements  of  the 
assessment,  the  commissioners  are  witnesses  merely. 

The  plea  will  be  allowed,  and  a  decree  made  against  the  mayor 
and  common  council  of  the  city,  according  'to  the  prayer  of  the 
bill. 

Under  the  agreement,  the  bill  will,  as  to  the  commissioners, 
be  dismissed  with  costs. 


Thomas  W.  James 

V. 

Susan  Laxe  and  others. 

Upon  the  application  of  the  widow  of  a  decedent  and  of  the  guardian  of 
his  minor  children,  and  upon  their  promise  to  repay  him  out  of  the  rents  of 
the  property,  the  complainant,  in  order  to  save  the  reed  property  of  the  estate 
from  a  forced  sale,  advanced  money  sufficient  to  pay  those  creditors  of  the 
estate  who  had  proved  tlieir  claims.  Afterwards,  and  upon  their  like  solicita- 
tion and  promise,  he  advanced  further  sums  of  mone^  to  pay  interest  on  a 
mortgage  on  the  property  and  to  make  necessary  repairs.  Only  a  small  por- 
tion of  such  advances  having  been  repaid,  he  demanded  the  balance  of  the 
guardian,  who  thereupon  gave  him  a  power  of  attorney  to  collect  the  rents  and 
appropriate  them  in  satisfaction  of  his  claims,  such  power  acknowledging  that 
his  debt  was  for  money  advanced  for  the  benefit  of  the  property,  and  to  protect 
it  from  a  public  sale.     He  collected  a  small  amount,  and  then  the  guardian, 


6  Stew.]  OCTOBER  TERM,  1880.  31 

James  v.  Lane. 

without  assigning  any  reason,  refused  to  allow  him  to  collect  any  more  rent. 
The  guardian  filed  an  account  in  the  orphans'  court,  but  omitted  complain- 
ant's claim  therefrom,  and  an  exception  on  that  account  by  the  complainant 
was  dismissed.  After  demanding  payment  of  the  widow  and  guardian,  com- 
plainant filed  a  bill  against  them  for  payment  of  his  claim,  and,  if  the  assets 
should  be  insufficient,  that  the  amount  due  or  the  deficiency  might  be  charged 
on  the  lands.  On  demurrer — Held  (the  power  of  attorney  being  still  in  ex- 
istence), that  equity  would  aid  complainant  in  obtaining  payment  of  his  debt 
by  the  collection  of  the  rents  under  the  power,  until  fully  re-imbursed. 


Bill  for  relief.     On  general  demurrer. 
Mr.  H.  P.  Reilly,  for  demurrants. 
Mr.  J.  N.  Braden,  for  complainant. 

The  Chancellor. 

The  complainant  seeks  to  recover  a  sum  of  money,  $569.74, 
lent  and  advanced  by  him  to  the  defendant,  Hugh  P.  Reilly,  as 
guardian  of  the  minor  children  of  Joseph  Lane,  deceased,  to  pro- 
tect their  real  estate  from  sale  for  the  payment  of  the  debts  of 
their  father  (from  whom  it  descended  to  them),  to  pay  interest 
on  a  mortgage  thereon,  and  to  repair  the  property,  &,c.  Lane,  at 
his  death,  left  a  widow  and  the  before-mentioned  children.     In 


Note. — While  a  guardian  may  be  liable  for  depreciation  in  tlie  value  of  his 
ward's  buildings  {WUlis  v.  Fox,  25  Wis.  646;  Irvine y.  McDowell, 4 Mem.  629); 
and  may  repair  {Oreen  v.  Winter,  1  Johns.  Ch.  26;  Hood  v.  Bridport,  11  Eng. 
L.  &  Eq.  271 ;  Cornell  v.  Vanardsdalen,  4  Pa-  St.  S64) ;  ordinarily  he  has  no 
authority  to  improve  his  ward's  real  estate  {Haggerty  v.  McCanna,  10  C.  E.  Gr. 
4S  ;  Snodgrass's  Appeal,  37  Pa.  St.  377 ;  Keameis  Account,  1  Pa.  St.  326;  Lane 
V.  Taylor,  40  Ind.  495;  Bellinger  v.  Shafer,  2  Sandf.  Oh.  293;  see  Jackson  v. 
Jackson,  1  Gratt.  14S ;  Newton  v.  Poole,  12  Leigh  112 ;  Powell  v.  North,  3  Ind. 
392;  Este  Y.  Strong,  2  Ohio  478 ;  Bonsall's  Case,  1  Rawle  266;  AfcOracken  v. 
McCracken,  6  Mon.  349) ;  and  while  he  may  be  personally  liable  for  the  cost 
thereof  [Sperry  y.  Fanning,  80  111.  374;  Findley  v.  Wilson,  3  Lilt.  390;  see 
Westbrook  v.  Comstock,  Walk.  Ch.  314;  Eobinson  v.  Hersey,  60  Me.  225) ;  the 
party  erecting  the  structures  has  no  lien  therefor  on  the  ward's  lands  ( Guy  v. 
Du  Uprey,  16  Cal.  195;  Copley  v.  CNiel,  57  Barb.  299,  39  How.  Pr.  41;  Mc- 
Carty  v.  Carter,  49  111.  53;  Payne  v.  Stone,  7  Sm.  &  Marsh.  367 ;  see  Davis  v. 


32  CASES  IX  CHAXCERY.  [33  Eq. 

James  v.  Lane. 

Februaiy,  1875,  letters  of  administration  of  his  estate  and  guard- 
ianship of  the  children  were  granted  to  Frederick  T.  Farrier. 
A  rule  of  the  orphans  court  was  made  at  that  time,  requiring  the 
creditors  of  the  estate  to  bring  in  their  debts  within  a  limited 
period,  and  a  decree  barring  all  who  had  not  come  in  was  made 
in  November  following.  On  a  representation  of  insolvency,  au 
order  to  sell  the  real  estate  of  the  intestate  to  pay  debts  was  sub- 
sequently made,  but  in  April,  1876,  the  administrator  was,  for 
some  cause,  restrained  by  the  court  from  making  the  sale.  The 
creditors,  or  some  of  them,  threatening  to  proceed  to  obtain  a  sale 
of  the  property  to  pay  their  debts,  the  widow  and  Hugh  P. 
Reilly,  who  in  June,  1876,  was  appointed  guardian  in  the  place 
of  Farrier,  applied  to  the  complainant  and  requested  him  to  ad- 
vance to  the  guardian  the  money  necessary  to  pjiy  the  claims  of 
the  creditors  who  had  proved  their  debts  within  the  period  limited 
by  the  before-mentioned  rule,  and  so  enable  them  to  save  the 
property  from  the  inevitable  sacrifice  of  a  public  sale  in  the  then 
depressed  condition  of  the  real  estate  market.  He  consented  and 
complied  with  their  request,  and  accordingly  advanced  to  the 
guardian  the  money  requisite  to  pay  the  claims  of  the  creditors 
which  amounted  to  $213.29  ;  the  guardian  and  the  widow,  whose 
dower  had  not  and  has  not  yet  been  assigned,  agreeing  to  repay 
him  out  of  the  rents  of  the  property  on  request.  He  afterwards, 
on  the  like  solicitation  of  the  widow  and  guardian,  and  on  the 

Bradford,  24  Me.  349) ;  nor  can  the  guardian  be  re-imbursed  for  advances  by 
him  for  such  purposes  {Hassan  v.  Eowe,  11  Barb.  22) ;  a  guardian  cannot  mort- 
gage his  ward's  lands  {Merritt  v.  Simpson,  41  III.  391 ;  Tyson  v.  Latrobe,  4^  Md. 
325  ;  see  Mohr  v.  Tulij,,  40  Wis.  66;  Winborne  v.  White,  69  JS.  C.  253) ;  although 
if  he  purchase  property  mortgaged,  lie  holds  it  for  the  benefit  of  the  wards,  sub- 
ject, of  course,  to  the  encumbrance  (Smith  v.  Maxwell,  7  Mon.  602) ;  and  has 
power  to  redeem  it  (Marvin  v.  Schilling,  12  Mich.  356) ;  he  may  not  obtain  an 
order  of  sale  for  the  mere  purpose  of  paying  off  a  mortgage  on  the  premises 
{Greenbaum  v.  Greejibaum,  SI  III.  367 ;  see  Stnith  v.Sackett,  10  III.  534;  Shinn 
V.  Budd,  1  McCart.  234). 

In  Louisiana,  a  mortgage  given  by  a  guardian  on  the  ward's  lands  for  the 
purpose  of  making  repairs,  paying  taxes,  and  providing  for  the  maintenance 
and  education  of  the  ward,  is  valid  and  a  preferred  claim  {Beauregard  v.  Leveau, 
30  La.  Ann.  302). 

"La  Eastwood  v.  Kenyan,  11  A.  <Sc  E.  433,  a  guardian  borrowed  money  of  A, 


6  Stew.]  OCTOBER  TERM,  1880.  33 

James  v.  Lane. 

like  agreement  for  repayment,  advanced  more  money,  to  the 
amount  of  $511.60,  to  make  needed  repairs  upon  the  property, 
to  pay  interest  on  a  mortgage  thereon,  and  to  make  other  pay- 
ments which  were  necessary  to  be  made  to  save  the  property  from 
sale.  They  having  repaid  him  only  $75.15  of  the  money  ad- 
vanced, he,  in  March,  1878,  demanded  payment  of  the  balance, 
$649.74,  and  the  guardian  gave  him  a  power  of  attorney,  au- 
thorizing him  to  collect  the  rents  until  he  should  be  paid  in  full, 
and  after  paying  taxes,  insurance  premiums  and  interest,  and 
making  necessary  repairs,  to  apply  the  balance  to  the  payment  of 
his  debt.  To  obtain  this  power  of  attorney  he  was  compelled  to 
advance  $100  more  (which  he  did  on  the  like  agreement  for  re- 
payment), to  put  the  property  in  tenantable  order.  The  power 
of  attorney  acknowledges  that  his  debt  was  for  money  advanced 
by  him  for  the  benefit  of  the  property,  and  to  protect  it  from 
sale.  Under  the  power  he  collected  $80,  and  then  the  guardian 
without  assigning  any  reason  for  so  doing,  refused  to  permit  him 
to  collect  any  more  rent.  Subsequently,  the  guardian  filed  his 
account,  but  it  was  silent  as  to  the  debt  due  the  complainant.  The 
latter  excepted  to  it,  thus  seeking  to  obtain  payment,  but  the 
exception  was  dismissed.  The  guardian  and  the  widow  refusing 
to  pay  him,  he  filed  his  bill  to  compel  the  guardian  to  pay  his 
debt,  and  if  the  latter  has  not  assets  enough  in  his  hands  to  do 
so,  to  charge  the  amount,  or  any  deficiency  which  may  exist  after 

which  he  expended  in  his  ward's  maintenance  and  education,  in  improving  the 
ward's  land,  and  in  paying  the  interest  on  a  mortgage  thereon ;  the  ward,  when 
of  age,  approved  such  expenditures,  and  promised  to  pay  A's  note,  and  in  fact 
paid  one  year's  interest  on  it ;  the  ward's  husband,  after  his  marriage,  assented 
thereto,  enjoyed  the  improved  estate,  and  promised  the  guardian  to  pay  the 
note. — Held,  the  luisband  was  not  liable,  because  no  sufficient  consideration  for 
his  promise  was  averred. 

One  advancing  money  to  pay  an  intestate's  debts,  acquires  no  lien  therefor 
on  the  lands  in  the  hands  of  the  heir  {Lieby  v.  Parks,  4-  Ohio  4^9). 

Where  A  and  B  are  the  joint-owners  of  a  house,  and  A  had  laid  out  in  im- 
provements thereon  moneys  he  had  obtained  from  B. — Hdd,  that  B  had  no  lien 
on  the  house  for  the  amount  {Kay  v.  Johnston,  21  Beav.  536 ;  Ourtiss  v.  White, 
Clarke  389). 

The  fact  that  one  furnished  the  money  with  which  grain  was  purchased, 
would  give  him  no  specific  lien  thereon  [Hodges  v.  Kimball,  49  Iowa  577). 


34  CASES  I-N  CHANCERY.  [33  Eq. 

James  v.  Lane. 

applying  such  assets,  on  the  real  estate.  The  defendants  have 
filed  a  general  demurrer.  That  the  complainant  ought  in  equity 
to  have  satisfaction  for  his  claim  out  of  the  estate,  there  is  no 
room  to  doubt.  He  has,  according  to  the  bill,  advanced  the 
money  necessary  to  save  the  property  to  the  widow  and  children. 
So  signal  a  service  ought  not  to  have  been  requited  by  a  denial 
of  repayment,  and  the  complainant  should  have  justice  here.  The 
old  case  of  Hooper  v.  Eyles,  2  Vern.  JfSO,  is  cited  by  the  demur- 
rants. There,  an  infant  had  an  estate  subject  to  a  money  charge, 
and  the  money  being  called  for  and  his  guardian  being  unable  to 
pay  it,  the  guardian  borrowed  it  from  the  complainant  and  paid 
off  the  encumbrance,  and  promised  to  give  the  complainant  a 
security  for  the  advance,  but  died  before  she  had  done  so.  The 
complainant  sought  to  obtain  satisfaction  of  his  debt  out  of  the 
infant's  property  by  subrogation  to  the  rights  of  the  encum- 
brancer, but  that  was  denied,  on  the  ground  that  there  was  no 
contract  or  agreement  to  charge  the  money  on  the  land,  and, 
therefore,  the  money  could  not  be  followed,  nor  the  land  be 
charged  with  it.  The  court,  however,  did  not  deny  all  relief; 
but  it  appearing  that  the  guardian  had  distributed  more  than 
she  had  received  out  of  the  infant's  estate,  an  account  was 
ordered,  with  direction  to  raise  any  amount  which  should  appear 
to  be  due  to  the  guardian  out  of  the  infant's  estate,  and  apply  it 
to  the  payment  of  the  complainant's  debt.  In  this  court,  in 
Haggerty  v.  McCanna,  10  C.  E.  Gr.  JfS,  the  amount  of  a  mort- 
gage on  an  infant's  land  paid  off  by  a  stepfather,  was,  under  the 
circumstances,  charged  on  the  land.  In  this  case,  the  bill  alleges 
in  substance  that  the  money  was  advanced  on  the  faith  of  an 
agreement  that  it  should  be  repaid  out  of  the  rents  and  profits 
of  the  real  estate  to  save  which  it  was  borrowed.     Also,  that  a 

One  who  advances  money  as  a  loan,  although  made  expressly  for  the  pay- 
ment of  materials  and  labor  in  the  erection  of  a  building,  can  have  no  claim  to 
the  benefit  of  a  mechanics'  lien  thereon  {Godeffroy  v.  Caldwell,  2  QaX.4S9  ;  Gay- 
lord  V.  Loughridge,  50  Tex.  57 S ;  Cairo  R.  B.  v.  Fackney,  7S  111.  116;  Dart  v. 
Mayhew,  60  Ga.  105 ;  McCuUough  v.  Kihler,  5  Rich.  (N.  S.)  468;  Weathersby 
V.  Sieger,  4^  Miss.  732;  see  also  Lee,  v.  Muggridge,  IV.&B.  118, 5  Taunt.  36  ; 
Hemphill  v.  McClimans,  24  Pa.  St.  367 ;  laege  v.  Boisseux,  15  Grait.  S3.) 


6  Stew.]  OCTOBER  TERM,  1880.  35 

James  v.  Lane. 

power  of  attorney  was  accordingly  given  to  the  complainant,  au- 
thorizing and  empowering  him  to  collect  the  rents  for  the  pay- 
ment of  his  debt  until  the  debt  should  have  been  fully  satisfied. 
It  was  and  is  inequitable  in  the  guardian  to  prevent  (for  such  is, 
substantially,  the  statement  of  the  bill  in  that  respect)  the  collec- 
tion of  rent  under  the  power  before  payment  of  the  debt  in  full, 
and  this  court  will,  under  the  circumstances  at  least  (and  it  is 
not  necessary  now  to  go  further),  aid  the  complainant  in  obtain- 
ing satisfaction  of  his  claim  for  advances  out  of  the  rents.  The 
advances  were  evidently  made  on  the  security  of  the  pledge  of 
the  rents.  The  power  of  attorney,  which  is  still  in  existence,  was 
given  in  pursuance  of  the  agreement  to  pay  the  debt  out  of  the 
rents.  The  collection  of  the  rents  has  been  interfered  with  and 
prevented  by  the  guardian,  and  he  and  the  widow  (she  is  now 
married  to  him)  refuse  to  pay  the  complainant.  The  estate  has 
had  the  benefit  of  the  advances.  They  were  its  salvation. 
The  demurrer  will  be  overruled. 


WiLSiAM  A.  Caspee,  executor, 

V. 

FEA^fE:  P.  Walker  and  others. 

A  testator  gave  to  his  wife  S4,000,  "  the  same  to  be  put  at  interest  in  some 
safe  investment,  and  secured  to  her  during  her  natural  life."  He  also  gave 
her  an  annuity  of  $400,  charged  on  his  homestead  farm,  which  he  gave  to  his 
only  child,  and  added,  "  It  is  further  my  will  that  the  said  Amy  reside  on  the 
aforesaid  farm  after  my  decease,  and  take  proper  care  of  the  same.  In  case 
they  (I  mean  Amy  and  her  husband)  should  not  see  proper  to  move  on  the 
same,  then  I  order  my  executor  to  sell  the  same  farm  at  public  vendue  to  the 
highest  bidder ;  but  there  is  nothing  herein  contained  that  affects  the  dower 
of  $400  devised  to  my  wife  aforesaid."  Testator  died  in  1869,  and  shortly 
afterwards  Amy  and  her  husband  removed  to  the  farm  and  occupied  it  for 
two  years,  when  they  leased  it  until  1880,  and  then  returned,  and  now  reside 
thereon. — Held, 

(1)  That  the  gift  of  $4,000  to  his  wife  was  absolute 


36  CASES  IN  CHANCERY.  [33  Eq. 

Casper  v.  Walker. 

(2)  That  Amy's  estate  in  the  farm  was  a  fee  simple,  chargeable  with  the 
annuity  of  $400,  and  not  defeasible  on  her  ceasing  to  reside  thereon. 


Bill  for  construction  of  will. 

3/r.  C.  H.  Sinnickson,  for  complainant. 

The  Chancelloe. 

Ebenezer  Peterson  died  in  1869,  leaving  his  widow,  Clarissa 
C,  and  his  daughter  Amy,  his  only  heirs  at  law,  surviving.  By 
his  will  he  provided  as  follows :  "  I  give  and  bequeath  unto  my 
beloved  wife,  Clarissa  C.  Peterson,  the  sum  of  $4,000,  the 
same  to  be  put  at  interest  in  some  safe  investment,  and  se- 
cured to  her  during  her  natural  life."  "  Also,  I  give  and 
bequeath  unto  my  said  wife  the  annual  income  of  $400,  to  be 
paid  half-yearly  from  the  farm  where  I  now  reside,  in  the 
township  of  Lower  Penn's  Neck,  purchased  of  Thomas  D. 
Bradway;   the  said  income  to  be  paid   in  full,  without  any  de- 

NoTE. — The  following  cases  show  what  words  confer  on  a  devisee  the  right 
to  reside  on  the  lands  devised  : 

That  testator's  daughters  should  not  be  deprived  of  a  home  while  they  re- 
mained single  {Nelson  v.  Nelson,  19  Ohio  2S2)  ;  that  a  mother  "  may  be  per- 
mitted to  occupy"  lands  devised  to  testator's  children  {Snowhillv.  Snowhill,  S 
Zed).  447)  ;  that  "  C.  shall  have  a  home,  during  her  natural  life,  on  the  farm 
hereinbefore  bequeathed  to  W."  ( Willett  v.  Cairoll,  13  Md.  459) ;  that  "  I  also 
allow  my  son  to  give  her  [testator's  widow]  a  support  off  my  plantation  during 
her  life"  {Hunter  v.  Stembridge,  12  Ga.  192 ;  see  Cabeen  v.  Gordon,  1  Hill's  Ch. 
51) ;  that  "  T.  take  care  of  his  grandmother  as  long  as  she  lives ;  and  she  is  to 
live  on  the  land  I  now  live  on,  and  to  have  the  benefit  of  living  on  it  as  long 
as  she  may  live  "  {Gentry  v.  Jones,  6  J.  J.  Marsh.  I4S) ;  that  testator's  daughter 
should  have  "  the  use  and  improvement  of  so  much  of  my  house  as  she  may 
need  during  her  life,  and  also  a  privilege  at  the  fire,  which  I  have  made  for 
my  wife,  while  they  live  together  "  {Kingman  v.  Kingman,  121  Mass.  249) ;  that 
testator's  widow,  to  Avhom  a  house  had  been  given  for  life,  should  "  keep  his 
house  open  to  any  of  his  children  that  may  be  or  have  been  indigent  or  un- 
fortunate "  {Lewis  V.  Reed,  10  Ga.  293) ;  that  testator's  widow  have  "  the  reason- 
able use  of  two  suitable  rooms  in  the  house  that  we  may  happen  to  dwell  in 
at  the  time  of  my  decease"  {Beeson  v.  Elliott,  1  Del.  Ch.  368);  "the  full 
privilege  of  the  house,  and  water  and  firewood"  {0)-aig  v.  Craig,  Bail.  Eq. 
102) ;  "  as  a  residence  for  her  [testator's  widow]  and  any  of  my  daughters 
who  may  remain  single "  {Rivers  v.  Rivers,  9  Rich.  Eq.  203) ;  "  the  use  of 


6  Stew.]  OCTOBER  TERM,  1880.  37 

Casper  v.  Walker. 

ductions  for  taxes  or  other  expenses,  this  being  my  expressed 
wish  and  will.  Also,  I  give  and  bequeath  unto  ray  beloved 
wife,  Clarissa  C,  the  choice  of  all  my  household  goods  and 
furniture,  or  the  whole  of  them,  if  she  chooses,  without  any 
reservation." 

"  I  give  and  bequeath  unto  my  daughter,  Amy  R.  Turner, 
wife  of  Jonathan  I.  Turner,  the  homestead  farm  where  I  now 
reside,  in  the  township  of  Lower  Penn's  Neck,  adjoining  lands 
of  John  Dunn  and  Elijah  W.  Dunn,  containing  about  105  acres, 
more  or  less,  save  the  legacy  of  $400  per  year  payable  to  my 
wife,  Clarissa,  as  above  specified." 

"  It  is  further  my  will  that  the  said  Amy  R.  Turner  reside  ou 
the  aforesaid  farm  after  my  decease,  and  take  proper  care  of  the 
same.  In  case  they  (I  mean  Amy  R.  Turner  and  her  husband) 
should  not  see  proper  to  move  ou  the  same,  then  I  order  my 
executor,  hereinafter  named,  to  sell  the  same  farm  at  public 
vendue  to  the  highest  bidder;  but  there  is  nothing  herein  con- 

the  mansion-house  and  furniture,  and  usual  family  accommodations  "  (Pinck- 
ney  v.  Pinckney,  2  Mich.  Eq.  218) ;  "  and  to  live  and  remain,  as  long  as  she  is 
unmarried,  in  my  house,  and  enjoy  the  same  privileges  as  she  now  does " 
[Maeck  v.  Nason,  21  Vt.  115) ;  "my  wife  is  to  have  a  home  and  good  support 
as  long  as  she  lives  on  the  home  premises — board  and  clothing,  etc."  {Good' 
rich's  Case,  3S  Wis.  422). 

A  devise  to  testator's  wife  for  life,  and  then,  "  It  is  my  wish  my  son  W.  should 
live  with  his  mother ; "  and  after  her  death  the  fee  to  be  his  own,  gives  no 
present  estate  in  the  land  to  W.  (Head  v.  Head,  7  Jones  620).  A  devise  of  a 
lot  for  life,  and  of  $10,000  to  enable  the  devisee  to  build  a  house  thereon,  does 
not  compel  him  to  build  the  house  {Ashe  v.  Ashe,  Rich.  Eq.  Cos.  3S0 ;  see  Five 
Points  House  v.  Amerman,  11  Hun  161 ;  Beck's  Appeal,  46  Pa.  St.  527). 

The  following  words  were  held  to  render  the  devise  conditional  upon  the 
devisee's  residence  on  the  premises :  that  "  if  A.  refuses  to  dwell  there  himself, 
or  keep  in  his  own  possession"  {Doe  v.  Hawke,  2  East  481] ;  that  "every  such 
person  shall  live  and  reside  on  the  said  estate  called  Juts "  {Fillinghain  v. 
Bromley,  Turn.  &  Buss.  530)  ;  that  the  use  and  enjoyment  should  be  offered, 
rent  free,  to  his  eldest  child  for  the  time  being,  as  long  as  he  or  she  should 
please,  and  in  case  of  refusal,  or  of  his  or  her  ceasing  to  occupy  the  same,  then 
to  his  other  children  in  succession  {Maclaren  v.  Stainton,  4  Jur.  (JV.  S.)  199) ; 
that  the  devisee  should  "  reside  "  in  the  mansion-house  for  six  months  in  every 
year  ( Walcot  v.  Botfield,  Kay  534) ;  that  the  devisee's  estate  should  be  forfeited 
in  case  he  did  not  make  the  mansion-house  "  his  usual  and  common  place  of 


38  CASES  IN  CHANCERY.  [33  Eq. 

Casper  v.  "Walker. 

tained  that  affects  the  dower  of  $400  devised  to  my  wife  afore- 
said." 

"  Further,  I  order  and  direct  the  balance  of  my  personal 
property,  after  securing  the  §4,000,  to  be  equally  divided  be- 
tween my  wife,  Clarissa  C,  and  my  daughter.  Amy  E,.  Turner." 

The  $4,000  have  been  duly  invested,  and  the  interest  paid  to 
the  widow.  The  questions  submitted  are :  What  interest  does 
the  widow  take  in  the  $4,000  ?  what  estate  does  the  daughter 
take  in  the  farm  under  the  devise  thereof  to  her  ?  and  is  that 
estate  defeasible  on  her  ceasing  to  reside  on  the  property  ? 

The  gift  of  §4,000  to  the  testator's  wife  is  absolute  in  its 
terms.  It  is  not  given  over  in  any  event,  either  expressly  or  by 
implication.  The  will,  indeed,  provides  that  it  shall  be  invested 
for  and  secured  to  her  during  her  life ;  but  that  is  merely  a  pro- 
vision as  to  the  manner  of  its  enjoyment  by  her  during  her  life ; 
the  gift  of  the  fund  is,  neverthess,  absolute,  subject  to  the  quali- 
fying trust.      Woodward  y.Woodioard,  1  C.  E.  Gr.  S3  ;  Kay  v. 

abode  and  residence"  {Wynne  v.  Fletcher,  24  Bear.  430) ;  that  tlie  person  en- 
titled should,  with  his  family,  reside  at  the  mansion-house,  and  make  it  his 
principal  place  of  abode  (Dunne  v.  Dunne,  3  Sm.  &  Giff.  22,  7  De  G.  M.  &  G. 
207);  "on  the  express  condition  only  that  she  remove  into  and  lire  in  said 
house,  herself  and  family  "  {Hart  v.  Ckesley,  IS  N.  H.  373) ;  "  that  my  wife  is 
to  keep  my  children,  and  raise  them,  and  give  them  a  sufficient  schooling" 
{Qrawford  v.  Patterson,  11  Gratl.  364) ;  that  a  plantation  be  given  to  E. 
and  M.,  "provided  they  come  and  live  on  it"  {Lowe  v.  Cloud,  45  Ga.  431); 
that  "  B.  should  remain  on  the  farm,"  and  pay  certain  charges  {Lindsey  v. 
Lindsey,  45  Ind.  552) ;  that  lands  should  go  to  O.,  "  providing  he  shall  live 
on  the  place,  and  carry  it  on  in  a  workmanlike  manner  {Marston  v.  Marston, 
47  Me.  495.    See,  further,  Moore  v.  Gamble,  1  Stock.  246). 

But  a  condition  that  if  any  of  the  devisees  "shall  not  settle  on  my  land,  or 
those  now  settled  will  not  remain  on  said  land,  but  will  remove  off  and  leave 
the  same,"  was  deemed  void  {Pardue  v.  Givens,  1  Jones  Eq.  306) ;  so,  a  devise 
to  testator's  children,  "in  case  they  continue  to  inhabit  the  town  of  H."  {New- 
kerk  v.  Newkerk,  2  Gaines  345 ;  see  Reeves  v.  Q-aig,  1  Winst.  209 ;  Keeler  v. 
Keder,  39  Vt.  550;  Wren  v.  Bradley,  2  De  G.  &  Sm.  49;  Boss  v.  lies,  20  W. 
B.  858) ;  80,  if  a  devisee  should  not  cease  to  reside  in  S.,  within  a  limited  time 
( Wilkinson  v.  Wilkinson,  L.  B.  {12  Eq.)  604;  Forward  v.  Tham^r,  9  Qratt.  537). 

The  following  words  were  held  not  to  be  conditional,  but  that  the  devisee 
might  reside  elsewhere  without  forfeiting  the  devise ;  that  testator's  wife 
"shall  have  her  maintenance  off  of  the  farm  devised  to  J.  while  she  lives, 


6  Stew.]  OCTOBER  TERM,  1880.  39 

Casper  v.  Walker. 

Kay,  3  Gr.  Ch.  4.9S  ;  Hawk  on  Wills  268;  Gulick  v.  Gulick,  10 
C.  E.  Gr.  32  ;  S.  C.  on  ajopeal,  W  C.  E.  Gr.  JfiS. 

The  devise  of  the  homestead  farm  to  Amy  is  in  fee,  subject  to 
the  charge  of  the  aunuity  to  the  widow.  It  is  not  defeasible  by 
her  non-residence  on  the  property.  The  testator  declares  that 
it  is  his  will  that  Amy  reside  on  the  farm  after  his  death,  and 
take  proper  care  of  it,  and  provides  that  in  case  she  and  her 
husband  should  not  "  see  proper  to  move  on  the  same,"  his  ex- 
ecutor sell  it.  He  adds  a  further  provision  that  such  conversion 
of  the  farm  into  money  shall  not  affect  the  gift  of  the  annuity 
charged  thereon  in  the  devise.  Amy  is  the  testator's  only  heir 
at  law.  He  died,  as  before  stated,  in  1869.  Soon  after  his 
death,  Amy  and  her  husband  removed  to  the  farm,  and  resided 
there  for  about  two  years.  They  then  leased  it,  and  it  was  occu- 
pied by  their  tenant.  In  the  spring  of  1880  they  returned  to 
it,  and  ever  since  then  have  resided  thereon. 

The  intention  of  the  testator,  in  the  provision  under  considera- 

*  *  *  that  J.  is  to  let  her  have  the  house  -while  she  lives,  and  to  furnish 
her  with  everything  necessary  to  her  comfort"  (Tope  v.  To-pe,  18  Ohio  520) ; 
that  she  should  have  "a  comfortable  room"  and  "sufficient  maintenance 
during  her  natural  life "  [Steelf^s  Appeal,  4"^  Pa.  St.  437) ;  that  "  my  five 
daughters  shall  have  a  home  in  the  house,  and  a  reasonable  and  moderate 
support,  during  their  single  lives,  from  the  said  farm " — not  lost  by  one  be- 
coming a  sister  of  charity  {Donnelly  v.  Edelen,  40  Md.  117) ;  that  "I  give  unto 
my  wife  E.  the  use  of  that  part  of  my  house  which  I  now  occupy,  during  her 
widowhood,  and  her  full  and  comfortable  support,"  &c.,  ( Van  Duyne  v.  Van 
Duyne,  1  McCart.  49) ;  that  A.  should  have  "  the  right  to  occupy  and  possess 
my  estate  called  Bellegrove,  and  the  furniture,  &c.,  there  or  elsewhere,  during 
her  natural  life  and  widowhood"  {Kearney  v.  Kearney,  2  G.  E.  Or.  59,  504; 
see  Murphy  v.  Murphy,  20  Ga.  649) ;  that  a  son  to  whom  a  farm  had  been 
given  "  afford  a  lawful  maintenance  to  my  daughter  A.  and  her  two  daughters, 
from  said  farm,  as  long  as  they  live  and  shall  want  the  same,"  and  that  "  A. 
shall  abide  and  have  a  lawful  maintenance,  and  her  two  daughters  with  her, 
on  said  farm,  as  long  as  the  said  A.  lives  and  her  two  daughters  shall  want 
their  maintenance" — as  to  the  daughters  after  A.'s  death  {Stillwell  v.  Pease,  3 
Or.  Ch.  74)  ;  that  "  my  mother  is  to  have  her  support  on  my  estate,  to  the 
amount  of  forty  dollars  a  year,  if  she  chooses  to  remain  on  my  estate,  and  if 
she  chooses  to  go  away,  she  is  to  be  paid  the  sum  of  forty  dollars  a  year  during 
her  natural  life," — and  she  goes  away,  the  devisee  is  still  liable,  and  not  the 
executor  {Henry  v.  Barrett,  6  Allen  500)  ;  that  "it  is  my  desire  that  my  son 


40  CASES  IN  CHANCERY.  [33  Eq. 

Casper  v.  Walker. 

tion,  was  not  to  defeat  the  devise  to  his  daughter,  but  to  secure 
the  property  against  want  of  care.  He  not  only  does  not  pro- 
vide that,  in  case  of  non-compliance  with  his  direction,  the  farm 
shall  go  over  to  some  one  else,  but  he  makes  no  provision  what- 
ever in  that  connection,  except  that  the  farm  be  converted  by 
his  executor  into  money,  by  sale.  He  makes  no  disposition  of 
the  proceeds  of  the  property  after  conversion.  The  residuary 
clause  is  confined  by  its  terms  to  his  personal  estate.  If  the  farm 
were  converted  under  this  provision,  the  proceeds  subject  to  the 
annuity  would  go  to  Amy,  under  the  devise ;  and,  apart  from 
that,  it  would  go  to  her  as  heir.  The  annuity  is  given  expressly 
in  lieu  of  dower.  That  the  testator  did  not  mean  to  provide 
that  his  daughter  should  reside  on  the  property  for  life  is  evi- 
denced by  the  use  of  the  word  "  move "  in  the  second  clause. 
In  the  first,  he  expresses  his  desire  that  she  and  her  husband 
should  reside  on  the  farm  and  take  proper  care  of  it.  In  the 
second,  he  orders  that  if  they  do  not  "  see  proper  to  move  on  " 

Aaron  remove  back  to  this  country,  and  to  have  them  [slaves],  but  not  to  take 
them  to  any  other  part  of  the  country"  {Harris  v.  Hearne,  Winst.  Eq.  91). 

The  devisee  might  let  the  premises  to  another ;  that  testator's  two  sons  might 
have  the  "  use  and  occupation "  of  certain  lands,  by  paying  a  stated  rent 
(Habbeth  v.  Squire,  19  Beav.  70)  ;  that  W.  "  may  have  the  choice  of  those  two 
rooms  which  shall  the  best  suit  her,  because  I  desire  that  the  said  AV.  should 
be  sure  of  a  shelter  during  the  time  she  may  live  "  ( Wusthoff  v.  Dracourt,  3 
Walts  24O);  that  a  widow  might  have  "  the  free  use  and  enjoyment  of  the 
portions  of  the  house  "  which  she  and  testator  then  occupied  ( Tobias  v.  Cohn, 
S6  N.  Y.  363)  ;  "  the  free  occupancy  of  any  house  in  my  possession,  for  her 
life,  free  of  any  payments  or  charge  whatever "  {Mannox  v.  Greener,  L.  E. 
{U  Eq.)  4-56). 

See,  further.  Trammel  v.  Johnston,  54  Ga.  S4I ;  Whittome  v.  Lamb,  1£  M.  & 
W.  813  ;  Thomas  v.  Bmjd,  13  Ind.  333;  Davis  y.  Vincent,  1  Houst.  4I6 ;  Smith 
V.  Jewett,  40  N.  H.  530. 

The  devise  is  not  forfeited  if  the  condition  be  broken  by  the  act  of  God,  as 
by  death  {Sutdiffe  v.  Richardson,  L.  R.  {13  Eq.)  607;  McLacUan  y.IIcLach- 
lan,  9  Paige  534;  Sampson  v.  Down,  2  Chit.  529 ;  see  Hayimrd  v.  AngeU,  1 
Vem.  222) ;  or  insanity  {Burns  v.  Clark,  37  Barb.  496) ;  or  by  destruction  of 
the  house  devised,  by  fire  {Schanck  v.  Arrowsmith,  1  Slock.  314,  330  ;  Tilden  v. 
Tilden,  13  Gray  103) ;  or  by  leaving  the  premises  through  constraint  {Jordan 
V.  Clark,  1  C.  E.  Gr.  243;  Roe  v.  Roe,  6  C.  E.  Gr.  253;  Craven  v.  Bleakney,  9 
Walts  19  ;  Hogeboom  v.  Hall,  24  Wend.  I46 ;  Huckabee  v.  Swoope,  20  Ala.  491 ; 


6  Stew.]  OCTOBER  TERM,  1880.  41 

Casper  v.  Walker. 

the  property,  the  executor  is  to  sell  it.  There  is  no  evidence  of 
any  intention  on  his  part  to  compel  his  daughter  to  reside  on  the 
farm,  as  a  condition  of  her  title  to  it  under  the  devise.  The 
language  of  the  first  clause  is  merely  expressive  of  his  desire. 
It  has  no  mandatory  character,  but  is  merely  precatory.  The 
provision,  taken  altogether,  is  as  if  he  had  said  that  his  daughter 
and  her  husband  occupy  his  homestead  farm,  as  their  home,  im- 
mediately after  his  death,  and  enter  on  such  occupation  and  care 
for  it  accordingly ;  but  if  such  should  not  be  their  wish,  then, 
in  order  to  secure  it  against  depreciation  from  want  of  care,  he 
directed  that  it  be  converted  into  cash,  the  sale  to  be  subject  to 
the  annuity-charge,  but  the  proceeds  to  go  to  his  daughter.  The 
daughter  moved  to,  and  resided  on,  the  farm  for  about  two 
years,  and  then  leased  it,  and  again  removed  to  it,  and  now  re- 
sides thereon.  There  is  no  provision  that  in  case  she,  having 
moved  to  it,  leaves  it  and  ceases  to  reside  there,  the  property 
shall  be  sold,  but  merely  that  it  shall  be  sold  if  she  does  not  see 
proper  to  move  there  at  all.  The  provision  for  sale  is  limited  in 
its  operation  by  its  terms,  and  there  is  no  reason  for  going 
beyond  the  literal  import  of  them.  To  do  so  would  be  to  ex- 
see  Philips  V.  Walker,  2  Bro.  P.  C  198) ;  or  by  taking  possession  of  the  premises 
with  a  bona  fide  intention  of  permanently  residing  there,  and  subsequently  re- 
moving (Brundage  y.  Domestic  Soc,  60  Barb.  204;  Hunt  v.  Beeson,  18  Ind. 
380) ;  or  by  going  to  sea  {Shaw  v.  Steward,  1  A.  &  E.  300) ;  or  by  temporary 
absence  {Hart  v.  Chesley,  IS  N.  H.  383 ;  see  McKissick  v.  Pickle,  16  Pa.  St. 
I4O) — aliter,  as  to  an  absence  of  several  years  {Q-awford  v.  Patterson,  11  Gratt. 
364)  ;  or  by  the  bankruptcy  of  the  devisee  ( Goldney's  Case,  3  Deac.  570)  ;  or 
by  impossibility  of  performance  through  testator's  act  {Bunburry  v.  Doran,  Ir. 
L.  B.  {8  a  L.)  516,  {9  a  L.)  284;  Hearn  v.  Cannon,  4  Houst.  20;  Martin  v. 
BaUou,  13  Barb.  119;  Lamb  v  3Iiller,  18  Pa.  St.  44S ;  Walker  v.  Walker,  2  Be 
G.  F.  &  J.  255) ;  or  by  operation  of  law  {Adams  v.  Bass,  18  Ga.  130 ;  Curry 
v.  Curry,  30  Ga.  253;  Miller  v.  Lewis,  33  Ga.  61 ;  TenniUe  v.  Phelps,  49  Ga. 
532;  Maddox  v.  Maddox,  11  Gratt.  8O4) ;  or  by  the  voluntary  release  or  waiver 
of  the  person  entitled  to  a  performance  {Jones  v.  Bramblet,  1  Scam.  276 ; 
Petro  V.  Cassiday,  13  Ind.  289;  Boone  v.  Tipton,  15  Ind.  270 ;  Rush  v.  Rush, 
40  Ind.  83;  Crawford  v.  Foods,  6  Bush  200;  Wilson  v.  Wilson,  38  Me.  18; 
Simonds  v.  Simonds,  3  Mete.  558;  Spavlding  v.  Hallenbeck,  39  Barb.  79; 
Brewster  v.  Brewster,  4  Sandf.  Ch.  22;  Buckmaster  v.  Needham,  22  Vt.  617 ; 
WdU  y.Welh,  37  Vt.  4^3;  see  Frost  v.  Butler,  7  Me.  225;  Manwell  v.  Briggs, 
17  Vt.  176;  Hubbard  v.  Hubbard,  12  Allen  586).— -Rep. 


42  CASES  IN  CHANCERY.  [33  Eq. 

Wesling  v.  Schrass. 

tend  them  indefinitely ;  for  it  would  not  even  be  limited  by,  and 
cease  with,  the  annuity.  Such  construction  would  give  the  ex- 
ecutor power  to  sell  whenever  tlie  daughter  should  cease  to  reside 
on  the  farm.  The  testator  undoubtedly  contemplated  no  such 
construction.  What  he  meant  was,  that  in  case  his  daughter 
should  not  be  willing,  at  his  decease,  to  enter  on  the  occupancy 
of  the  farm  as  her  residence,  it  should  then  be  sold ;  and  if  sold, 
it  should  be  sold  subject  to  the  annuity,  and  the  proceeds  of  the 
sale  should  go  to  her.  He  did  not  intend  to  cloud  her  title  with 
an  ever-impending  power  of  sale.  The  executor  has  not  now, 
and  will  not  have,  any  duty  in  respect  to  the  sale  of  the  farm. 


KiCHAED  Wesling,  Administrator, 

V. 

Peter  Schrass  et  al. 

To  a  judgment-creditor's  bill  to  set  aside  a  conveyance  of  lands,  alleged  to 
be  fraudulent  as  against  such  creditor,  to  which  the  grantor  (the  debtor),  his 
wife  and  their  grantee  were  made  defendants,  the  wife  did  not  demur,  as  she 
might  have  done,  but  filed  a  plea  setting  forth  a  sheriff's  sale  and  conveyance 
of  the  premises  to  her,  under  an  execution  issued  out  of  this  court  against  her 
husband  and  another,  before  the  alleged  fraudulent  conveyance. — Held,  on  ar- 
gument of  the  plea,  that  it  is  not  good,  because  it  does  not  set  out  any  order  or 
decree  on  which  the  execution  issued. 


On  plea  to  creditor's  bill. 

3Ir.  A.  I.  Smith,  for  the  plea. 

Mr.  M.  Bretzfdd,  contra. 

The  Chancellor. 

The  bill  is  filed  by  a  judgment-creditor  of  the  defendant,  Peter 
Schrass,  against  him  and  his  wife  and  Jacob  Lenly,  to  set  aside  aa 


6  Stew.]  OCTOBER  TERM,  1880.  43 

Clement's  Executors  v.  Bartlett, 

fraudulent,  as  against  the  judgment,  a  deed  of  real  property  in 
Hudson  county,  made  by  Schrass  and  his  wife  to  Lenly,  for 
property  of  Schrass,  as  the  bill  alleges.  The  debt  on  which  the 
judgment  was  recovered  was  contracted  May  1st,  1871,  and  the 
deed  is  dated  October  3d,  1877.  Schrass  and  his  wife  plead  that 
a  writ  of  JieH  facias  de  bonis  et  terris  was  issued  out  of  this  court 
September  21st,  1877,  against  John  Kuppler  and  Schrass,  directed 
to  the  sheriff  of  Hudson  county,  to  whom  it  was  delivered,  and 
that  under  it  the  sheriff  duly  sold  and  conveyed  the  interest  of 
Schrass  in  the  property  in  question  to  Schrass's  wife,  for  $372, 
which  were  paid  by  her  out  of  her  separate  estate.  The  bill 
neither  states  this  conveyance  nor  makes  any  reference  to  it. 
Mrs.  Schrass  does  not  appear  by  the  bill  to  have  any  interest  in 
the  property.  She  appears,  by  its  statements,  to  have  joined  her 
husband  in  the  deed  to  Lenly  merely  to  bar  her  dower.  Accord- 
ing to  the  bill,  she  has  no  interest  in  this  suit,  and  she  might 
have  demurred.  The  plea  does  not  aver  in  any  way  the  exist- 
ence of  any  decree  or  order  authorizing  the  issuing  of  the  writ 
of  fieri  facias  under  which  she  claims  title  to  the  property.  It 
is  therefore  defective.  But  leave  will  be  given  to  amend  on  pay- 
ment of  costs. 


Executors  of  John  A.  Clement,  deceased, 

V. 

Jarvis  a.  Bartlett  et  al. 

A  statute  requiring  mortgages  to  be  registered,  or  to  lose  their  priority  as 
against  subsequent  judgment-creditors,  or  bona  fide  purchasers  or  mortgagees 
of  the  same  premises,  without  notice,  applies  to  a  mortgage  given  to  the  state. 
A  suit  for  the  foreclosure  of  a  mortgage  given  after,  but  registered  before,  one 
given  to  the  state  on  the  same  lands,  is  a  suit  "  arising  out  of  any  previous  lien 
or  encumbrance"  (Eev.  p.  12SS),  to  which  the  state  may  be  made  a  party,  and 
have  its  rights  in  the  premises  determined. 


Bill  to  foreclose.     On  final  hearing  on  bill  and  answer. 


44  CASES  IN  CHANCERY.  [33  Eq. 

Clement's  Executors  v.  Bartlett. 
Mr.  P.  S.  Scovel,  for  complainants. 

Mr.  J.  P.  Stockton,  attorney-general,  for  trustees  for  support 
of  public  schools. 

The  Chancellor. 

The  single  question  presented  for  consideration  by  the  briefs 
of  counsel  is,  whether  the  state  is  bound  by  the  statute  providing 
for  the  registration  or  recording  of  mortgages  of  real  estate. 

On  the  8th  of  October,  1857,  Jarvis  H.  Bartlett  gave  a  mort- 
gage to  the  "  Trustees  for  the  Support  of  Free  Schools,"  on  lands 
in  the  county  of  Burlington,  to  secure  the  payment  of  $3,000  in 
one  year,  with  interest.  It  was  not  recorded,  however,  until 
October  4th,  1866,  nearly  nine  years  afterwards.  On  the  17th 
of  February,  1858,  Bartlett  gave  another  mortgage,  on  the  same 
land,  to  John  A.  Clement,  to  secure  the  payment  of  $2,000  in 
one  year,  with  interest.  That  mortgage  was  duly  recorded  April 
9th,  1858.  Between  the  last-mentioned  date  and  the  time  of 
recording  the  mortgage  to  the  trustees,  Bartlett  conveyed  parts 
of  the  mortgaged  premises  to  several  persons,  by  deeds  which 
were  duly  recorded  before  the  recording  of  the  trustees'  moi't- 
gage.  The  answer  of  the  trustees  admits  that  Clement,  when  he 
took  his  mortgage,  had  no  notice  of  the  existence  of  their  mort- 
gage. It  alleges  that  the  delay  in  recording  the  latter  mortgage 
occurred  through  "  inadvertence  or  otherwise,"  and  it  raises,  by 
way  of  demurrer,  the  question  above  stated. 

The  counsel  for  the  state  urges  that  inasmuch  as  a  state  cannot 
be  sued  in  its  own  courts  without  its  consent,  in  the  absence  of 
constitutional  or  statutory  provision  {Am.  Dock  dx.  Co.  v.  Trus- 
tees &c.  5  Steiu.  Eq.  4^8),  and  inasmuch  as,  as  he  insists,  if  the 
mortgage  act  is  not  binding  on  the  state,  this  suit  does  not  arise  out 
of  a  "  previous  lien  or  encumbrance  "  to  that  of  the  state  on  the 
mortgaged  premises,  this  suit  cannot  be  maintained.  In  the 
court  of  chancery  of  the  state  of  New  York  it  was  the  ordinary 

Note. — For  cases  showing  what  statutes  apply  to  a  state,  see  Trustees  v. 
Trenton,  S  Stew.  Eq.  667,  note.— Rep. 


6  Stew.]  OCTOBER  TERM,  1880.  45 

Clement's  Executors  v.  Bartlett. 

practice  to  make  the  attorney-general  a  party  to  a  foreclosure  suit 
M'here  the  people  of  the  state  had  a  subsequent  lien  upon  the 
mortgaged  premises  by  judgment  or  otherwise,  so  as  to  give  to 
the  purchaser  under  the  decree  of  foreclosure  a  perfect  title  to  the 
premises  discharged  of  the  lien  of  the  state.  Garr  v.  Bright,  1 
Barb.  Ch.  157.  And  in  this  court  the  like  practice  has  obtained 
in  such  suits  in  regard  to  other  states  holding  encumbrances  on 
mortgaged  premises.  They  were  made  parties  in  order  that  they 
might  protect  their  rights.  In  Willhxk  v.  Morris  Canal  Co., 
3  Gh'.  Ch.  377,  the  state  of  Indiana  was  made  a  party  under  such 
circumstances.  The  jurisdiction  where  liens  are  held  by  the 
state  is  established  by  statute.  The  act  entitled  "An  act  to 
provide  for  the  adjustment  of  claims  in  favor  of  the  state," 
[Rev.  pp.  1^23,  122^,  provides  that  in  all  cases  where  the  state 
has  any  lien  or  encumbrance  upon  lands,  and  a  suit  is  brought 
arising  out  of  any  previous  lien  or  encumbrance  thereon,  such  lien 
or  encumbrance  of  the  state  may  be  brought  in  question  and  defi- 
nitely settled  by  any  court  having  jurisdiction  over  the  subject 
matter  of  the  suit.  It  further  provides  that  in  all  cases  where 
the  lien,  encumbrance  or  priority  of  encumbrances  of  the  state 
shall  be  brought  in  question  on  due  return  of  notice  directed  to 
the  state,  and  served  on  the  attorney-general,  or  on  due  appear- 
ance for  the  state,  the  suit  may  proceed  as  other  cases,  and  a 
decree  or  judgment  therein  shall  bind  the  state  the  same  as  if  it 
had  been  made  against  an  individual ;  and  that  the  lien  of  the 
state,  on  sale  under  such  decree  or  judgment,  shall  be  cut  off,  and 
the  claim  of  the  state  shall  be  made  out  of  the  surplus,  if  any,  in 
the  order  of  priority  in  which  the  encumbrance  of  the  state  stands. 
The  act  concerning  mortgages  [Rev.  p.  706)  provides  that 
every  deed  of  mortgage  or  conveyance  in  the  nature  of  a  mort- 
gage, of  or  for  any  lands,  tenements  or  hereditaments,  which  shall 
have  been  made  and  executed  after  the  1st  day  of  January,  in 
the  year  of  our  Lord  1821,  or  shall,  after  the  passage  of  the  act, 
be  made  and  executed,  shall  be  void  and  of  no  effect  against  a 
subsequent  judgment-creditor  or  bona  fide  purchaser,  or  mortga- 
gee for  a  valuable  consideration,  not  having  notice  thereof,  unless 
such  mortgage  shall  be  acknowledged  or  proved  according  to  law, 


46  CASES  IN  CHANCERY.  [33  Eq. 

Bartles's  Case. 

and  recorded  or  lodged  for  that  purpose  with  the  clerk  of  the 
court  of  common  pleas  of  the  county  in  which  such  lauds,  tene- 
ments or  hereditaments  are  situate,  at  or  before  the  time  of  enter- 
ing such  judgment,  or  of  recording  or  lodging  with  the  clerk,  as 
aforesaid,  the  said  mortgage  or  conveyance  to  such  subsequent 
purchaser  or  mortgagee. 

Unless  the  claim  of  the  state  can  be  maintained  on  the  ground 
of  governmental  prerogative,  it  is  obviously  insupportable.  It 
cannot  be  maintained  on  that  ground.  Board  of  Chosen  Free- 
holders v.  State  Bank,  2  Stew.  Eq.  268  ;  Trustees  for  Snppoi't  of 
Public  Schools  V.  Trenton,  3  Stew.  Eq.  6S3.  By  the  common  law, 
the  king  himself  was  bound  by  an  act  of  parliament  intended  to 
give  a  remedy  against  a  wrong  or  prevent  fraud,  even  though  he 
was  not  named  in  the  act.  The  act  under  consideration  makes  no 
reservation  or  exception  in  favor  of  the  state.  Its  terms  are 
general  and  sweeping.  It  existed,  and  indeed  had  been  long  in 
force,  when  the  respective  mortgages  of  the  trustees  and  the  com- 
plainants were  taken.  The  former  was  taken  subject  to  its  pro- 
visions, and  the  latter  under  its  })rotection.  The  state  itself,  by 
the  statute,  in  eifect,  declared  to  Clement  when  he  took  his  mort- 
gage, that  if  any  unregistered  or  unrecorded  mortgage,  of  which 
he  had  no  actual  notice,  existed  on  the  property,  it  would  be  void 
and  of  no  effect  against  that  which  he  proposed  to  take  thereon. 

I  am  unable  to  perceive  any  ground  on  which  the  claim  now 
made  in  behalf  of  the  state  can  be  sustained. 


In  the  matter  of  the  application  of  Theodore  Baetles  and 
others,  for  payment  to  them  of  a  trust  fund  under  the 
control  of  this  court. 

By  a  will,  proved  in  1S49,  a  testator  gave  to  his  executor  his  homestead  farm 
in  trust  during  the  life  of  his  daughter  (petitioner's  mother),  to  receive  the 
rents  and  profits,  and  to  pay  them  to  her  for  her  separate  use,  and  to  keep  the 
property  clear  of  any  encumbrance  by  her  or  her  husband  ;  and  he  gave  the 
farm,  after  her  decease,  to  such  person  or  persons  as  should  be  her  heir  or 


6  Stew.]  OCTOBER  TERM,  1880.  47 

Bartles's  Case. 

heirs  at  law  of  land  held  by  her  in  fee  simple.  In  1868  the  farm  was  sold  by 
order  of  this  court,  under  the  act  authorizing  the  sale  of  lands  limited  over  to 
infants  or  in  contingency,  the  proceeds  paid  into  court  and  invested  for  the 
benefit  of  the  parties  interested. — Hdd,  that  such  proceeds  of  sale  could  not  be 
paid  over  to  her  children  and  heirs  at  law,  on  their  own  application,  exhibit- 
ing the  release  of  their  mother  and  her  consent  thereto ;  nor  can  they  be  paid 
over  until  after  her  death,  because  it  cannot  until  then  be  determined  who  are 
her  heirs  at  law. 


On  petition. 

The  Chancellor. 

The  petitioners  are  the  children  of  Phoebe  Ann  Bartles.  Her 
father,  now  deceased,  by  his  will,  proved  in  1849,  gave  to  his 
executor  his  homestead  farm  in  Morris  county  during  her  life,  in 
trust,  to  rent  it  and  receive  the  rents  and  profits  and  pay  them 
over  as  he  should  receive  them,  to  her,  for  her  separate  use,  and 
to  keep  the  property  clear  of  all  encumbrances  by  her  or  on  her 
account,  or  by  or  on  account  of  her  then  or  any  future  husband, 
and  he  gave  and  devised  the  farm  after  her  decease  to  "  such 
person  or  persons  as  "  should  "  be  her  heir  or  heirs  at  law  of 
laud  held  by  her  in  fee  simple."  The  farm  was  sold  by  order 
of  this  court  in  1868,  under  the  act  to  authorize  the  sale  of  land 
limited  over  to  infants  or  in  contingency  {Reo.  p.  1052),  and  the 
net  proceeds  of  sale  were  paid  into  this  court  and  invested  under 
its  direction  according  to  the  provisions  of  that  act.  Mrs.  Bartles 
is  still  living,  but  has  released  her  right  and  interest  to  and  in 
the  fund  to  the  petitioners,  who  are  all  of  her  children,  and  they 
apply  for  the  fund  on  the  ground  that  having  extinguished  her 
life  estate  they  are  entitled  to  the  money.  That  they  are  not  so 
is  entirely  clear.  The  remainder  in  fee  is  given  at  the  death  of 
the  life  tenant  to  "  such  person  or  persons  as  shall  be  her  heir  or 
heirs  at  law  of  land  held  by  her  in  fee  simple :"  that  is,  to  those 
who  by  law  would  inherit  the  property  at  her  death  if  she  died 
intestate  seized  thereof  in  fee.  Who  those  persons  will  be  cannot 
now  be  determined.  Nemo  est  hceres  viventis.  She  has  heirs 
apparent  and  presumptive  now,  but  whether  those  persons  will 
be  her  heirs  at  her  death  and  so  entitled  to  the  remainder,  cannot 


48  CASES  IN  CHANCERY.  [33  Eq. 

Bartles's  Case. 

be  told  until  that  time  arrives.  The  testator  manifestly  did  not 
refer  to  any  particular  individual  or  individuals,  or  class  of  ex- 
isting persons,  by  the  language  which  he  employed,  but  used  the 
word  "  heir "  in  the  technical  sense,  as  is  particularly  evident 
from  his  use  of  the  future  tense — "  such  person  or  persons  as 
shall  be  her  heir  or  heirs  at  law,  &c." — that  is,  such  person  or 
persons  as  shall  be  her  heir  or  heirs  at  law  when  she  dies. 
The  petition  must  be  dismissed. 

Note. — Under  nemo  est  hceres  viventis,  a  testamentary  gift  to  the  heirs  of  A 
during  A's  lifetime  is  void  {3  Greenl.  Cruise  *106  ^  37  ;  2  Jwm.  cm  Wilh*13  et 
seq. ;  Otis  v.  Prince,  10  Gray  582  ;  Stiih  v.  Barnes,  1  Law  Bepos.  (N.  C.)  4^4; 
Chessun  v.  Smith,  2  Id.  392 ;  Norris  v.  Hensley,  27  Cal.  439,  450 ;  Campbell  v. 
Bawdon,  IS  N.  Y.  412, 4I6. 

But  if  A  be  referred  to  in  the  will  as  a  living  person,  a  gift  to  his  heirs  is 
valid  {James  v.  Bichard»on,  1  Ventr.  334;  Ooodright  v.  White,  2  W.  Bl.  1010 ; 
Winter  v.  Perratt,  5B.&C.4S;  Came  v.  Boche,  7  Bing.  226  ;  Darbison  v.  Beau- 
mont, 1  P.  Wms.  229 ;  Vannorsdell  v.  Van  Deventer,  51  Barb.  137;  Heard  v. 
Horton,  1  Denio  165  ;  Cushman  v.  Horton,  59  N.  Y.  149  ;  Cosbey  v.  Lee,  2  Disn. 
460;  Jourdan  v.  Green,  1  Dev.  Eq.  270 ;  Levitt  v.  Wood,  17  Grants  Ch.  414; 
Knight  v.  Knight,  3  Jones  Eq.  167 ;  Simm^  v.  Garrott,  1  Dev.  &  Bat.  Eq.  393  ; 
Ward  Y.Stow,  2  Dev.  Eq.  509 ;  Stith  v.  Barnes,  1  Imw  Bepos.  4^4;  or,  in  case 
the  term  heirs  is  evidently  used  as  designatio  personarum  {Sams  v.  Garlick,  14  M. 
&  W.  698  ;  Baker  v.  Tucker,  3  H.  of  L.  Ccw.  106;  Bittson  v.  Stordy,  1  Jur.  {N. 
S.)  771;  Bowers  v.  Porter,  4  Pick.  198 ;  Johnson  v.  Whiton,  118  3fass.  340 ; 
Morion  \.  Barrett,  22  Me.  257 ;  Williamson  v.  Williamson,  18  B.  Mon.  370; 
Bapp  v.  Matthias,  35  Ind.  332;  Butler  v.  Heustis,  68  III.  594;  Bailey  v.  Patter- 
son, 3  Bich.  Eq.  156  ;  Caulk  v.  Fox,  IS  Fla.  I48,  161 ;  Ware  v.  Bichardson,  3 
Md.  505 ;  Boberis  v.  Ogbourne,  37  Ala.  174 ;  Myers  v.  Anderson,  1  Strobh.  Eq. 
344) ',  so  where  the  term  heirs  is  qualified,  as  heirs  of  the  body,  right  heirs,  &c. 
{Nightingale  v.  Quarterly,  1  T.  B.  630 ;  Sweet  v.  Herring,  1  East  264;  Darbison 
V.  Beaumont,  3  Bro.  P.  C.  60;  Doe  v.  Laning,  2  Burr.  1100  ;  Tucker  v.  Adams, 
14  Ga.  548;  Sharman  v.  Jackson,  30  Ga.  224  /  Tipton  v.  La  Bose,  27  Ind.  484  ; 
Grout  V.  Townsend,  2  Hill  554;  Bradford  v.  Howell,  4^  Ala.  422;  Lemarks  v. 
Glover,  1  Bich.  Eq.  I4I). 

The  grantee  in  a  deed  must  be  in  existence  and  certain,  therefore  a  grant  to 
a  dead  man  is  void  {Hunter  v.  Watson,  12  Cal.  363  ;  McCracken  v.  BeaU,  3  A. 
K.  Marsh.  208;  Galloway  v.  Finley,  12  Pet.  264;  see  Holden  v.  Smallbroke 
Vaughn  199) ;  or  to  a  fictitious  person  {Thomas  v.  Wyatt,  25  Mo.  24,  31  Mo. 
188  ;  Phelps  v.  CaU,  7  Led.  262 ;  Muskingum  Co.  v.  Ward,  13  Ohio  120;  Smith 
V.  Bridges,  Breese  2) ;  or  to  one  unborn  {Newsom  v.  Thompson,  2  Ired.  277 ; 
Dupree  v.  Dupree,  Busb.  Eq.  164;  Hall  v.  Thomas,  3  Strobh.  101 ;  Hamilton  v. 
Pitcher,  53  Mo.  334) ;  although  in  Nehm  v.  Iverson,  24  Ala.  9,  the  property  in 
a  slave  delivered  by  a  father  to  his  daughter  to  belong  to  her  child,  with  which 


6  Stew.]  OCTOBER  TERM,  1880.  49 


Bartles's  Case. 


she  was  then  pregnant,  should  it  be  a  boy,  was  held  to  vest  in  such  boy  at  his 
birth. 

A  grant  to  the  heirs  of  a  deceased  person  is  good  {Shaw  v.  Loud,  12  Mass, 
447  ;  Boone  v.  Moore,  I4  Mo.  420  ;  Gearhart  v.  Sharp,  9  B.  Mon.  31 ;  see  Sar- 
gent V.  Simpson,  8  Me.  148  ;  Duncan  v.  Harper,  4  Rich.  [N.  S.)  84). 

A  deed  to  the  heirs  of  a  living  person  is,  ordinarily,  void  {Hall  v.  Leonard, 
1  Pick.  £7  ;  Morris  v.  Stephens,  46  Pa.  St.  200  ;  Winslow  v.  Wimlow,  52  Ind.  8  ; 
Newsom  v.  Thompson,  2  Ired.  277)  ;  yet  if  such  intent  be  apparent  from  the  in- 
strument, who  are  the  beneficiaries  may  be  shown  {Hogg  v.  Odom,  Dud.  185 ; 
Martin  v.  Youngblood,  8  Humph.  581 ;  Gearhart  v.  Sharp,  9  B.  Mon.  34 ;  Huss 
V.  Stephens,  51  Pa.  St.  282  ;  Huss  v.  Morris,  63  Pa.  St.  367  ;  Flint  v.  Sleadman, 
36  Vt.  210 ;  Hickman  v.  Quinn,  6  Yerg.  95 ;  see  further  Epperson  v.  Mills,  19 
Tex.  65  ;  Cole  v.  Lake  Co.,  54  N.  H.  290) ;  thus  a  deed  to  the  joint  heirs  of  A 
and  B,  the  grantor's  daughter  and  son  in  law,  was  held  good  as  to  the  two  chil- 
dren of  A  and  B,  then  living,  but  not  as  to  any  subsequently  born  {Holeman  v. 
Fort,  3  Strobh.  Eq.  66). 

A  note  payable  to  the  heirs  of  a  living  person  is  valid  ( Bacon  v.  Fitch,  1  Boot 
181 ;  Loehwood  v.  Jesup,  9  Conn.  272 ;  Cox  v.  Beltzhoover,  11  Mo.  14^  ;  but  see 
Bennington  v.  Dinsmore,  2  Gill  34S). 

A  deed  to  S.  or  his  heirs  is  good  {Beady  v.  Kearsley,  14  Mich.  215 ;  Hogan  v. 
Page,  2  WaU.  605  ;  see  Carhart  v.  Miller,  2  South.  573) ;  or  a  bond  payable  to 
A  or  B  ( White  v.  Hancock,  2  C.  B.  830;  Hazen  v.  Drummond,  4  Allen  {K  B) 
267 ;  Parker  v.  Carson,  64  N.  C.  563) ;  but  not  a  promissory  note  {Musselman 
v.  Oakes,  19  111.  81;  Blanckenhagen  y.  Bluvdell,  2  B.  &  Aid.  417 ;  Osgood  v. 
Pearson,  4  Gray  455 ;  National  Lis.  Co.  v.  Allen,  116  Mass.  4^0 ;  Hayden  v. 
Snell,  9  Gray  365;  Willoughhy  v.  Willoughby,  5  N.  H.  244;  see  Doak  v.  Rob- 
inson, 1  Hannay  278). 

In  a  conveyance  to  an  unmarried  woman  and  her  children,  she  takes  a  life 
estate  with  a  remainder  to  her  after-born  children,  if  any  {Fales  v.  Currier,  55 
N.  H  392  ;  Frazer  v.  Supervisors,  74  III.  282;  see  Chessun  v.  Smith,  2  Law  Re- 
pos.  {N.  C.)  392). 

If  to  a  married  woman  and  her  children,  those  subsequently  born  do  not 
take  {Ay  ton  v.  Ay  ton,  1  Cox  327  ;  Stroman  v.  Rottenburg,  4Desau8s.  268  ;  Hogg 
V.  Odom,  Dud.  185  ;  Grimes  v.  Orrand,  2  Heisk.  298  ;  Holeman  v.  Fort,  3  Strobh. 
Eq,  66 ;  Kitchens  v.  Craig,  1  Bail.  119)  ;  unless  a  contrary  intent  appears  {Lil- 
lard  V.  Ruckers,  9  Yerg.  64;  Read  v.  File,  8  Humph.  328 ;  Shepherd  v.  Nahors, 
6  Ala.  631;  Waits  v.  Clardy,  2  Fla.  369;  Conklin  v.  Conklin,  3  Sandf.  Ch.  64; 
Woodruff  v.  Woodruff,  32  Ga.  358;  Houghton  v.  Kendall,  7  Allen  72;  Foster  v. 
Shreve,  6  Bush  519  ;  Simms  v.  Garrott,  1  Dev.  &  Bat.  Eq.  393;  BvUock  v.  Btd- 
lock,  2  Dev.  Eq.  307  ;  Noe  v.  Miller,  4  Stew.  Eq.  234). 

A  life  tenant's  covenant  indemnifying  one  against  damage  and  loss  by  reason 
of  suits  by  the  covenantor's  heirs,  executors  or  administrators,  was  held  not  to 
include  such  covenantor's  children  {Pearson  v.  Darringion,  32  Ala.  227,  275). 

A  mere  contingent  interest  is  subject  to  legislation,  affecting  or  destroying  it 
before  it  becomes  vested  {Beall  v.  Beall,  8  Ga.  210  ;  Scott  v.  Key,  11  La.  Ann. 
232;  Sleight  v.  Read,  9  Rmo.  Pr.  278;  Aspden's  Estate,  2  Wall.  Jr.  368;  Bamet- 

4 


50  CASES  IX  CHANCERY.  [33  Eq. 

Bartles's  Case. 

V.  Huson,  60  Barb.  598 ;  Dixon  v.  Dixon,  4  Im.  Ann.  191 ;  Marshall  v.  King, 
U  Miss.  So;  Hill  V.  Chambers,  SO  Mich.  4^2;  Price  v.  Taylor,  28  Pa.  St.  95; 
McOunnigle  v.  McKee,  77 Pa. St.  SI ;  see,  however,  Coleman  v.  Meed,  Walk.  258 ; 
Sinclair  v.  Jackson,  8  Cow.  54S ;  Gilpin  v.  Williavis,  25  Ohio  St.  2SS ;  Dunn  v. 
Sargent,  101  Mass.  336;  Shonk  v.  Broum,  61  Pa.  St.  320;  Van  Tilburgh  v.  Hol- 
linshead,  1  McCart.  32). 

An  heir  cannot  convey  liis  interest  or  expectancy  in  his  ancestor's  estate, 
before  such  ancestor's  decease,  or  the  happening  of  the  contingency  [Stdlings 
V.  Richmond,  5  Allen  187 ;  Jackson  v.  Bradford,  4  Wend.  619  ;  Tooley  v.  Dibble, 
2  Hill  (N.  Y.)  641;  Whitney  v.  Rust,  1  Gratt.  4^3;  Arrington  v.  Arrington,  2 
LawRepos.  (N.  C.)  253;  Dennett  v.  Dennett,  40  N.  H.  498  ;  Vance  v.  Vance,  21 
Me.  364;  Grogan  v.  Gairison,  27  Ohio  St.  50;  Striker  v.  Mott,  28  N.  Y.  82; 
Ludewig's  Case,  3  Rob.  (La.)  90 ;  Beard  v.  Origgs,  1  A.  K.  Marsh.  26 ;  Boynton 
V.  Hubbard,  7  Mass.  112;  Hun  v.  Chaffee,  14  N.  H.  215;  Blanchard  v.  Brooks, 
12  Pick.  47  ;  Barksdale  v.  Gamage,  3  Rich.  Eq.  271 ;  Brewer  v.  Baxter,  4I  Ga. 
212 ;  Hart  v.  Gregg,  32  Ohio  St.  502 ;  Pdletreau  v.  Jackson,  11  Wend.  110 ; 
Robertson  v.  Wilson,  38  N.  H.  4S ;  Hall  v.  Nate,  38  N.  H.  4^2;  Edwards  v. 
Varick,  5  Denio  664) ;  or  mortgage  it  {Bayler  v.  Com.,  40  Pa.  St.  37 ;  Carlton 
V.  Leighton,  3  Merit.  667;  Purcell  v.  Mather,  35  Ala.  570;  see  BaUy  v.  Lhyd,  1 
Vem.  141 ;  Cook  v.  Field,  15  Q.  B.  475;  John  Street,  19  Wend.  659  ;  Hamilton 
V.  Pitcher,  53  Mo.  334;  Bacon  v.  Bonham,  12  C.  E.  Gr.  209).  As  to  post  obits 
see  1  Story's  Eq.  Jur.  \l  54^-348;  Lushington  v.  Wallis,  1  H.  Bl.  94;  Spencer 
V.  Jansen,  2  Ves.  Sr.  125 ;  Cooke  v.  Lamotte,  15  Beav.  234  /  Beynon  v.  Cook,  L. 
R.  (10  Ch.)  389;  Miller  v.  Cook,  L.  R.  {10  Eq.)  64I). 

Equity,  however,  will  enforce  an  executory  contract  to  convey  such  contin- 
gent interest  to  third  persons,  provided  it  be  fair  and  bona  fide  {Hopson  v.  Tre- 
vor, 1  Strange  533  ;  Phipson  v.  Turner,  9  Sim.  240;  Hindey.  Blake,  3  Beav.  234; 
Westby  v.  Westby,  2  Dr.  &  War.  502;  Ridgeway  v.  Undei-wood,  67  III.  419;  Mc- 
Lmghlin  v.  Maher,  17  Hun  215 ;  Smallman's  Estate,  Ir.  L.  R.  (8 Eq.)  249;  Cook 
V.  Field,  15  Q.  B.  460;  Mastin  v.  3Iarlow,  65  iV.  C.  695;  Nesmith  v.  Dinsmore, 
17  N.  H.  515;  Trull  v.  Eastman,  3  Mete.  121;  Russ  v.  Alpaugh,  118  Mass.  376  ; 
Curtis  V.  Curtis,  40  Me.  24 ;  McDonald  v.  McDonald,  5  Jones  Eq.  211 ;  Stover 
V.  Eycelshimer,  46  Barb.  84,  3  Keyes  620) ;  especially  if  made  to  the  ancestor 
(Cbx  V.  Belitha,  2  P.  Wms.  272;  Persse  v.  Persse,  7  CI.  &  Fin.  279;  Quarles 
V.  Quarles,  4  Ma^.  680 ;  Jones  v.  Jones,  46  Iowa  466  ;  Firestone  v.  Firestone,  2 
Ohio  St.  415;  Needles  v.  Needles,  7  Ohio  St.  4^2;  Fitzgerald  v.  Vestal.  4Sneed 
258;  Parsons  v.  Ely,  45  III.  232;  Havens  v.  Thompson,  11  C.  E.  Gr.  383);  or 
to  another  heir  ( Wethered  v.  Wethered,  2  Sim.  183  ;  Marwood  v.  Tooke,  Id.  192 ; 
Hyde  v.  White,  5  Sim.  524;  Jeefers  v.  Lampson,  10  Ohio  St.  101;  Coates  Street, 
2  Ashm.  12;  Walker  v.  Walker,  67  Pa.  St.  185;  D'Wolf  v.  Gardiner,  9  R.  I. 
145  ;  Miller  v.  Emans,  19  N.  Y.  384;  Leicis  v.  Madison,  1  Munf.  303  ;  Johnson 
V.  Hubbell,  2  Stock.  332 ;  Smith  v.  Axtell,  Saxt.  4^4)  ;  or  with  the  ancestor's  ex- 
press consent  {Fitch  v.  Fitch,  8  Pick.  4S0  ;  Jenkins  v.  Stetson,  9  Allen  127;  Lee 
V.  Lee,  2  Duv.  134;  McBee  v.  3Iyer.?,  4  Bush  356). 

But  equity  does  not  always  enforce  such  assignments  {Meek  v.  Kettlewell,  1 
Phil.  342  ;  Dowry  v.  Spear,  7  Bush  451;  Wheeler  v.  Wheeler,  2  Mete.  {Ky.)  474; 


6  Stew.]  OCTOBER  TERM,  1880.  51 

Bartles's  Case. 

Hardin  v.  Smith,  7  B.  Mon.  S9S ;  Mercier  v.  Mercier,  50  Go*  546) ;  and  may 
impose  terms  (Gwynne  v.  HeaUm,  1  Bro.  C.  C.  1). 

As  to  the  mode  of  alienating  such  interest,  see  Dorsey  v.  Smith,  7  Harr.  & 
Johns.  345 ;  Bennett  v.  Morris,  5  Rawle  9 ;  Lintner  v.  Snyder,  15  Barb.  621; 
Wilscm  V.  Wilson,  S2  Barb.  328;  Ackennan  v.  Vredand.  1  McCart.  23;  Faber 
V.  Police,  10  Rich.  [N.  S.)  376;  McElwee  v.  Wheder,  Id.  392;  Roof  v.  Fountain, 
20  Barb.  527;  McClure  v.  McClure,  1  Phila.  117;  Hopper  v.  Demarest,  1  Zab. 
525. 

A  tenant  by  curtesy  initiate  may  convey  his  interest  in  lands  (Beaume  v. 
Chambers,  22  Mo.  36  ;  Jackson  v.  Mancius,  2  Wend.  357 ;  McCorry  v.  King,  3 
Humph.  267 ;  Evans  v.  Kingsbtrry,  2  Rand.  120 ;  McClain  v.  Gregg,  2  A.  K. 
Marsh.  457  ;  see  Oldham  v.  Henderson,  5  Dana  254) ',  or  one  who  has  "  entered  " 
a  tract  of  land  before  receiving  his  patent  therefor  (Hayward  v.  Ormsbee,  11 
Wis.  3 ;  Harmer  v.  Morris,  1  McLean  44;  Bledsoe  v.  Little,  4  How.  {Miss.)  IS ; 
Lamb  v.  Kanna,  1  Sawy.  238 ;  Carroll  v.  Nonoood,  4  H.  &  McH.  287 ;  Gra- 
ham V.  Henry,  17  Tex.  164;  Cobb  v.  Stewart,  4  Mete.  {Ky.)  255);  or  after  an 
entry  for  condition  broken  {Homer  v.  Chicago  R.  R.,  38  Wis.  165 ;  S  White  & 
Tudor' s  Lead.  Cos.  {4th  ed.)  1609;  Southard  v.  Central  R.  R.,  2  Dutch.  13  ;  Rice 
V.  Bostm,  R.  R.,  12  Allen  I4I ;  Boone  v.  Tipton,  15  Ind.  270  ;  Underhill  v.  Sara- 
toga R.  R.,  20  Barb.  455. 

An  heir  whose  title  is  abated  by  a  stranger  cannot  devise  it  before  entry. 
Hall  V.  Hall,  3  Call  488;  1  Jarm.  on  Wills  {5th  Am.  ed.)*  153 ;  see  Watts  v. 
Cole.  2  Leigh  664  ;  Varick  v.  Jackson,  2  Wend.  166  ;  Herrington  v.  Budd,  5  Denio 
321 ;  Leach  v.  Jay,  L.  R.  {6  Ch.  Div.)  496,  {9  Ch.  Div.)  4^) ;  nor  one  who  has 
a  mere  possibility  of  reverter  {Deas  v.  Horry,  2  Hill  Ch.  248 ;  Miller  v.  McNair, 
11  Iowa  525;  see  Fowler  v.  Griffin,  3  Sand/.  385). 

A  possibility  coupled  with  an  interest  is  devisable  or  descendible  {Manners 
V.  Manners,  Spen.142  ;  Thornton  v.  Roberts,  3  Stew.  Eq.  476 ;  Kean  v.  Hoffecker, 
2  Harring.  103 ;  Thompson  v.  Hoop,  6  Ohio  St.  4^0 ;  Lewis  v.  Kemp,  1  Ired. 
145  ;  Pond  V.  Bergh,  10  Paige  I4O,  153  and  cases  cited ;  Davis  v.  Bawcum,  10 
Heisk.  4O6 ;  Woodgate  v.  Fleet,  44  N.  T.l;  Ingilby  v.  Amcotts,  21  Beav.  585; 
Moor  V.  Hawkins,  2  Eden  342  ;  Austin  v.  Cambridgeport,  21  Pick.  215  ;  4  Kent 
*512;  Winslow  v.  Goodwin,  7  Mete.  363;  Smith  v.  Sweringen,  26  Mo.  651 ;  Mc- 
Donald V.  McMullen,  2  Hills  91 ;  see  Bigelow  v.  Wilson,  1  Pick.  493 ;  Grayson 
V.  Sandford,  12  La.  Ann.  646) ;  but  not  a  bare  possibility,  as  if  a  conveyance  be 
to  A  and  B  and  the  survivor,  A  has  no  interest  to  assign  during  B's  lifetime 
{Doe  V.  Tomkinson,  2  M.&  Sel.  165;  Jackson  v.  Waldron,  13  Wend.  178; 
O'Bierne^s  Case,  1  Jon.  &  Lat.  352  ;  Decker  v.  Saltsman,  1  Hun  4^1,  59  N.  Y. 
275  ;  see  3IacAdam  v.  Logan,  3  Bro.  C.  C.  310  ;  Thomas  v.  Jones,  1  De  G.  J.  & 
S.  63;  Miller  v.  Emans,  19  N.  Y.  384;   Wilson  v.  Wilson,  32  Barb.  328). 

No  act  of  the  life  tenant,  or  trustee  of  such  life  tenant,  can  affect  the  rights 
of  the  remaindermen.  {Putnam  v.  Gleason,  99  Mass.  454/  Noble  v.  Andrews,  37 
Conn.  346 ;  Jackson  v.  Edwards,  22  Wend.  498 ;  Frazer  v.  Supervisors,  74  III. 
282  ;  Ernison  v.  Whittlesey,  55  Mo.  254;  Austin  v.  Rutland  R.  R.,  45  Vt.  215 ; 
Feltman  v.  Butts,  8  Bush  115;  List  v.  Rodney,  S3  Pa.  St.  433;  Hosmer  v.  Car- 
ter, 68  III.  98;   WUHns  v.  Kirkbride,  12  C.  E.  Gr.  93;  Booraem  v.  Wells,  4  C 


52  CASES  IN  CHANCERY.  [33  Eq. 

Bartles's  Case. 

E.  Gr.  87;  see  Knight  v.Weaihemax,  7  Paige  1S2 ;  Isler  v.Whilfield,  Phil.  [N. 
C.)  49S;  Hall  v.Want,  Id.  502 ;  Baylor  v.  Be  Jarnette,  IS  Gratl.  152  ;  Stephens 
V.  Evans,  SO  Ind.  39 ;  Hamilton  v.  Pitcher,  53  Mo.  S34;  Lewis  v.  Nelson,  4 
Mich.  630;  Gamer  v.  Bowling,  11  Heisk.  4^ ;  Allen  v.  Allen,  2  Tenn.  Oh.  2S ; 
Murell  V.  Mathews,  2  Bay  397). 

But  statutory  proceedings  authorizing  courts  to  convey  or  release  estates  in 
expectancy,  &c.,  are  valid.  {Beisley  v.  Carter,  L.  R.  [4-  Ch.)  230 ;  Bamettv. 
Moxon,  L.  R.  {20  Eq.)  1S2 ;  Wills  v,  Slade,  6  Ves.  493;  GaskeU.  v.  Gaskell,  6 
Sim.  643;  Mead  v.  Mitchell,  17  N.  Y.  210;  Williman  v.  Holmes,  4  Rich.  Eq. 
475;  Faulkner  v.  Bavis,  18  Gratl.  651;  Loyless  v.  Blackshear,  43  Gu.  327; 
Reindersv.  Koppelmann,  68  3Io.  482;  Nutter  v.  Russell,  3  Mete.  {Ky.)  163; 
Taylor  v.  Blake,  109  Mass.  513;  Bodd's  Qise,  Phil.  {N.  C)  Eq.  97 ;  Mickl^s 
Case,  10  C.  E.  Gr.  53;  Chism  v.  Keith,  1  Hun  589). 

A  contingent  remainder  cannot  be  seized  on  execution.  {Allen  v.  Scuiry,  1 
Yerg.  36 ;  Bargan  v.  Richardson,  Bud.  62 ;  Penn  v.  Spencer,  17  Gratt.  85 ; 
WaUon  V.  Bodd,  68  N.  C.  528;  Jackson  v.  Middlelon,  52  Barb.  9;  Perkins  v. 
Clack,  3  Head  734;  Allston  v.  Bank,  2  Hill  Ch.  242  ;  Baker  v.  Copenbarger,  15 
111.  103;  Ridgewayv.  Underwood,  67  III.  430;  Strikers.  Mott,  28  N.  Y.  82; 
see  Lockwood  v.  Nye,  2  Swan  515 ;  Payn  v.  Beal,  4  Benio  405 ;  Woodgate  v. 
Fleet,  44  N.  Y.  1;  Sheridan  v.  House,  4  Abb.  Ap.  218;  Bolton  v.  Stretch,  3 
Stew.  Eq.  536). 

What  contingent  interests  pass  under  an  insolvent  or  bankrupt  assignment, 
see  Inkson's  Trusts,  21  Beav.  310;  Ivison  v.  Gassiot,  27  Eng.  L.  &  E.  483; 
Buggan's  Trusts,  L.  R.  {8  Eq.)  697;  Mitchell  v.  Hughes,  6  Bing.  689;  Burn  v 
Carvalho,  1  Ad.  &  El.  883;  Gibbins  v.  Eyden,  L.  R.  {7  Eq.)  371;  Higden  v. 
WiUiamson,S  P.  Wms.  131 ;  Mudge  y.  Rowan,  L.  R.  {3  Exch.)  185;  Blake- 
mor^s  Case,  L.  R.  {5  Ch.  Biv.)  372 ;  Bavins  Case,  Mont.  297;  Naden's  Case, 
L.  R.  {9  Ch.)  670;  Nimmo  v.  Bavis,  7  Tex.  26;  Outcalt  v.  Van  Winkle,  1  Gr. 
Ch.513;  Sanford  v.  Lackland,  2  Bill.  6;  Krumbaar  v.  Burt,  2  Wash.  C.  C. 
406;  Kinzie  v.  Winston,  56  III.  56;  Banks  v.  Ogden,  2  Wall.  57  ;  Butler  v. 
Merchants  Ins.  Co.,  8  Ala.  146;  Shay  v.  Sessaman,  10  Pa.  St.  432;  Moth  v. 
Frame,  Amb.  394;  Vizard's  Trusts,  L.  R.  {1  Eq.)  667,  {1  Ch.)  588;  Lee  v. 
aiding,  2  Jur.  {N.  S.)  850;  Rash's  Estate,  2  Pars.  160 ;  Stucker  v.  Harvey,  1 
Miles  247;  Shaw  v.  Steward,  1  A.  &  E.  300;  Grow  v.  Creditors,  31  Col.  328  ; 
Rowan  v.  Harrison,  2  Pug.  503. 

For  instances  of  assignments  of  expectancies,  «S;c.,  under  statutory  pro- 
visions, see  Moore  v.  Litlel,  40  Barb.  488,  4I  N.  Y.  66 ;  Sheridan  v.  Home,  4 
Abb.  Ct.  of  App.  Bee.  218 ;  Stover  v.  Eycleshimer,  3  Keyes  620 ;  Goodell  v. 
Hibbard,  32  Mich.  47;  4  Kent  *512 ;  Turpin  v.  Turpin,  Wythe  22  {137);  Law- 
rence V.  Bayard,  7  Paige  70 ;  Lacland  v.  Nevins,  S  Mo.  App.  S35. — Eep. 


6  Stew.]  OCTOBER  TERM,  1880.  63 

Hoboken  Bank  v.  Beckman. 

The  Hobokex  Bank  for  Savings, 

V. 

Peter  H.  Beckman  et  al. 


1.  Mortgaged  premises  were  sold,  and  a  decree  for  deficiency  taken  against 
the  mortgagor.  Thirteen  days  before  such  sale,  the  mortgagor  conveyed  all 
his  lands,  valued  at  $50,000,  to  his  two  sons,  one  of  them  a  minor,  in  satisfao 
faction  of  an  alleged  indebtedness  of  §8,000  to  them,  no  other  debts  being 
shown. — Held,  fraudulent  as  against  the  mortgagee. 

2.  Although  an  answer,  under  oath,  denying  fraud,  be  not  overcome  by  the 
testimony  of  two  witnesses,  or  what  is  equivalent  thereto,  yet  such  answer,  if 
it  contain  admissions  of  facts  from  which  fraud  follows  as  a  natural  and  legal, 
if  not  a  necessary  and  unavoidable  conclusion,  does  not  disprove  such  fraud,  (a) 


Creditor's  bill.     On  final  hearing  on  pleadings  and  proofs. 

Mr.  F.  B.  Ogden  for  complainant. 

Mr.  B.  Parmley  and  Mr.  H.  S.  White,  for  defendants 

The  Chancellor. 

The  bill  states,  and  it  is  admitted,  that  the  complainant,  on 
the  8th  of  August,  1878,  obtained  a  decree  of  this  court  for  fore- 
closure and  sale  of  real  property,  mortgaged  to  it  by  the  defend- 
ant, Peter  H.  Beckman,  under  execution  issued,  on  which  the 
property  was  sold  March  27th,  1879;  that  the  decree  for  fore- 
closure contained  the  usual  personal  decree  for  deficiency  against 
the  mortgagor;  that  there  was  a  deficiency  of  $1,360;  that  exe- 
cution for  the  deficiency  was  issued  April  4th,  1879,  and  that  it 
was  returned,  wholly  unsatisfied,  on  the  9th  of  that  month.  On 
the  14th  of  that  month,  thirteen  days  before  the  sale  of  the  mort- 
gaged premises,  Beckman  conveyed  all  his  property,  consisting 
of  several  different  parcels  of  valuable  real  estate  in  Hudson 
county,  to  his  two  sons,  the  defendants,   Henry  and  AVilliam 

(a)  Note. — See  Sayre  v.  Fredericks,  1  C.  E.  Gr.  SOS;  How  v.  Camp,  Walk.  Ch, 
^7.— Rep. 


54  CASES  IN  CHANCERY.  [33  Eq. 


Hoboken  Bank  v.  Beckman. 


Beckman.  The  deed  expresses  a  consideration  of  $7,758.88. 
The  proof  is,  that  the  property  so  conveyed  is  worth  $53,250. 
It  is  true  it  is  alleged  (it  is  not  proved  except  by  the  production, 
by  the  defendants,  of  certain  deeds  and  a  declaration  of  sale),  that 
a  part  of  the  property,  valued  at  $29,050,  is  held  under  tax  title 
merely,  and  it  is  alleged  that  it  is  subject  to  taxes  and  assess- 
ments for  municipal  improvements  also.  It  is  also  alleged  that 
the  rest  of  the  pro])erty,  valued  at  $24,200,  is  subject  to  mort- 
gages amounting  to  $16,525,  and  a  copy  of  the  record  or  registry 
of  mortgages  appearing  to  be  on  the  property,  is  offered,  but  no 
proof  is  given  as  to  the  amount  due  thereon.  It  is  alleged,  too, 
that  that  property  is  subject  to  taxes  and  assessments  to  the  amount 
of  $3,828.95,  and  bills  for  taxes  and  assessments  upon  it  to  that 
amount  are  put  in  evidence,  but,  beyond  them,  there  is  no  evi- 
dence on  the  subject.  The  bill  alleges  that  the  consideration  of 
the  deed  from  Beckman  and  his  wife  to  his  sons  was  false  and 
fictitious,  and  that  no  consideration  actually  passed  between  the 
grantor  and  grantees  for  the  conveyance;  that  the  grantees  are 
both  young  men  of  no  financial  ability,  and  that  one  of  them  is  a 
minor.  It  calls  for  answer  on  oath,  and  the  defendants  have  so 
answered.  In  substance,  they  allege  that  the  boys  kept  a  livery 
stable  and  undertaker's  establishment,  and  their  father  managed 
the  business  for  them ;  that  he  collected  more  money  in  it  than 
be  paid  out,  and  owed  them  a  large  sum  on  account  of  his  col- 
lections ;  that  they  frequently  asked  him  to  come  to  an  account, 
but  never  could  get  him  to  do  so  until  the  day  of  the  date  of  the 
deed  to  them,  and  that  the  consideration  stated  in  the  deed  was 
the  amount  then  found  to  be  due  to  them  from  him.  This 
meagre  statement  is  all  that  is  given  by  the  defendants  in  support 
of  a  transaction  which  is  abundantly  suspicious  on  its  face. 
Though  the  bill  alleges  that  the  father  was  indebted  to  others 
besides  the  complainant,  the  answer  denies  it  as  to  all  other  per- 
sons than  the  sons,  alleging  that,  except  the  debts  of  the  com- 
plainant and  the  sons,  lie  did  not  owe  a  dollar.  So  that  within 
less  than  two  weeks  prior  to  the  foreclosure  sale,  with  a  decree  for 
deficiency  against  him,  Beckman,  the  mortgagor,  conveyed  all  his 
real  estate  to  his  two  sons,  in  consideration  of  an  alleged   debt 


6  Stew.]  OCTOBER  TERM,  1880.  55 

Hoboken  Bank  v.  Beckraan. 

from  him  to  them  of  nearly  $8,000,  and  he  did  not,  he  says,  owe 
a  dollar  to  any  one  except  them  and  the  complainant.  Nor,  so 
far  as  appears,  was  there  any  evidence  of  the  alleged  debt  to  the 
sons.  Nor  does  there  appear  to  have  been  any  discharge  of  it, 
if  it  existed.  It  appears  by  the  testimony  that  when,  after  the 
conveyance,  one  of  the  sons  was  asked,  by  the  president  of  the 
complainant,  what  consideration  was  paid  for  the  conveyance,  he 
answered  that  he  "  did  not  know ;  that  it  was  not  fixed  up  yet ; 
that  it  was  on  their  books."  And  when  the  president  asked  him 
if  he  paid  any  money  to  his  father,  he  replied  that  he  "  could  not 
tell ;  it  was  not  fixed  up  yet."  And  in  the  same  conversation  he 
said  he  was  working  for  his  father.  That  he  made  those  replies 
is  not  denied.  Why  the  father  should  have  conveyed  all  his 
property  to  his  sons  in  satisfaction  of  the  alleged  debt,  instead  of 
securing  their  debt  thereon,  does  not  appear.  Nor  does  it  apjjear 
that  they  were  pressing  or  even  urging  him  to  secure  or  satisfy 
their  debt.  There  does  not  appear  to  have  been  any  valuation 
of  the  property  or  any  price  fixed  upon  it.  A  transaction  so  sus- 
picious cannot  escape  the  condemnation  of  the  court. 

The  defendants  insist  that,  having  answered  under  oath  as  re- 
quired, their  answer,  so  far  as  it  is  responsive,  is  to  be  taken  as 
conclusive  unless  overcome  by  the  testimony  of  two  witnesses,  or 
what  is  equivalent  thereto.  But  a  denial  by  the  answer,  in  such 
a  case  as  this,  of  the  existence  of  fraud,  will  not  avail  to  disprove 
it  where  the  answer  admits  facts  from  which  fraud  follows  as  a 
natural  and  legal,  if  not  a  necessary  and  unavoidable  conclusion. 
Here  the  answer  admits  that  there  was  a  decree  for  foreclosure 
and  sale,  and  a  personal  decree  for  deficiency  against  the  mort- 
gagor ;  that  a  few  days  before  the  sale  took  place  he  conveyed  a 
very  large  amount  of  property  to  his  two  sons  (one  of  whom  was 
a  minor),  with  whom  he  was  concerned  in  business,  as  manager, 
according  to  the  answer.  No  account  is  given  of  the  particulars 
of  the  alleged  debt,  but  it  is  merely  averred  that  there  was  an  ac- 
count, and  that  the  consideration  of  the  conveyance  was  the 
amount  found  due  thereon.  It  is  not  alleged  that  the  amount 
of  the  consideration  as  expressed  in  the  deed  was,  in  fact,  due. 
The  value  of  the  property  conveyed  is  shown   to  be  §50,000, 


56  CASES  IN  CHANCERY.  [33  Eq. 

Bibby  v.  Bibby. 

while  the  alleged  debt  was  less  than  $8,000.  No  satisfactory 
proof  is  offered  to  show  that  the  apparent  disparity  between  the 
value  of  the  property  and  the  alleged  debt  did  not,  in  fact,  exist. 
As  to  the  difference  between  the  amount  of  the  alleged  debt,  if  it 
existed,  and  the  greater  value  of  the  property,  the  conveyance 
was  a  fraud  on  the  complainant.  When  the  value  of  the  prop- 
erty was  established  at  nearly  seven  times  the  amount  of  the  debt, 
it  was  incumbent  on  the  defendants  to  show,  by  satisfactory 
l^roof,  that  the  disparity  did  not,  in  fact,  exist.  Besides,  the  time 
when  and  the  parties  between  whom  the  conveyance  was  made, 
and  the  character  of  the  transaction  as  detailed  in  the  answer, 
all  show  that,  notwithstanding  the  denial  of  the  answer,  the  con- 
veyance was  designed  to  defraud  the  complainant.  It  will  be  set 
aside  accordingly  as  against  the  complainant's  debt. 


James  S.  Bibby 

V. 

Sarah  Bibby. 


In  a  suit  by  a  husband  for  divorce  on  the  ground  of  his  wife's  adultery,  the 
fact  that  the  alleged  paramour  of  the  wife  was  within  reach  of  process  at  the 
time  of  examining  the  witnesses,  and  was  not  called  to  testify  on  behalf  of  the 
wife's  innocence,  is  significant,  and  corroborative  of  the  other  witnesses'  testi- 
mony as  to  her  guilt. 

Petition  for  divorce.  On  final  hearing  on  pleadings  and 
proofs 

Mr.  S.  Tudtle,  for  petitioner. 

Mr.  W.  H.  Francis,  for  defendant. 

The  chancellor,  after  reviewing  the  testimony,  concluded  that 
the  adultery  of  the  wife  had  been  sufficiently  proved  to  decree  a 
divorce  in  the  husbaiul'.s  favor.     He  then  said: 


6  Stew.]  OCTOBER  TERM,  1880.  57 

Flaacke  v.  Jersey  City. 

The  Chancellor. 

"While  the  defendant  was  not  a  competent  witness  in  her  own 
behalf  to  disprove  the  imputed  adultery,  Young,  her  alleged 
paramour,  was,  and  he  appears  to  have  been  in  Paterson  duriDg 
the  examination  of  witnesses  in  this  cause.  He  might  have 
been  called,  but  was  not.  The  defendant  has  chosen  rather  to 
come  to  the  hearing  without  his  testimony.  The  fact  that  she 
did  not  call  him  is  an  important  circumstance  in  corroboration 
of  the  testimony  of  the  Mellors,  and  of  much  significance  in 
reaching  a  conclusion  as  to  her  guilt. 

There  will  be  a  decree  of  divorce. 


Henry  Flaacke 

V. 

The  Mayor  and  Aldermen  op  Jersey  City  and  others. 

1.  A  solicitor  who  is  a  party  to  a  suit  and  appears  in  his  own  behalf,  is  enti- 
tled to  the  allowances  made  by  the  fee  bill  for  his  services  therein,  except  a  re- 
taining fee. 

2.  Certain  items  of  costs  and  their  taxation  and  allowance  considered. 

3.  The  act  of  1879  (P.  L.  of  1879  p.  lOS)  only  applies  to  the  clerk's  fees  on 
papers  bearing  specified  endorsements,  and  not  to  affidavits  of  verification  and 
schedules  attached  to  bills  or  answers. 


Motion  for  retaxation  of  costs. 
Mr.  8.  B.  Ransom,  for  the  motion. 
M7\  8.  C.  Mount,  contra. 

The  Chancellor. 

The  complainant  objects  not  only  to  certain  items  of  the  bills 
of  costs  as  taxed  for  the  defendants  Andrew  B.  Church  and  S. 
C.  Mount  respectively,  on  the  ground  that  the  allowances  are 


58  CASES  IN  CHANCERY.  [33  Eq. 

Flaacke  v.  Jersey  City. 

greater  than  the  law  authorizes,  but  insists  that  Mr.  Mount,  who 
is  a  solicitor  of  this  court,  and  appeared  in  the  cause  in  his  ONvn 
person,  is  not  entitled  to  any  costs,  because  he  did  not  appear  by 
solicitor.  The  objections  cannot  be  sustained.  A  solicitor  who 
is  a  party  to  a  suit  and  appears  in  his  own  person,  is  entitled  to 
the  allowances  made  by  the  fee  bill  for  his  services  therein,  except, 
of  couree,  for  a  retaining  fee.  Willard  v.  Harbech,  3  Denio  260. 
The  objections  made  to  the  items  of  the  bill  are  directed  to  the 
number  of  folios  charged  for  papers  drawn  or  copies  obtained, 
which  it  is  claimed  is  excessive ;  to  the  allowance  made  for  draw- 
ing, engrossing  and  taxing  costs,  which  it  is  insisted  is  more  than 
is  allowed  by  law  for  the  respective  services  rendered ;  to  the 
allowance  to  the  clerk  for  entering  appearance,  and  to  the  allow- 

NoTE. — OflBcers  may  not  detain  papers  or  records  until  their  fees  are  paid. 
Anon.,  Dickinson's  Prec.  S4;  Taylor  v.  Lewis,  S  Ves.  Ill ;  Hayne  v.  Watts,  3 
Swanst.  93 ;  Wait  v.  Schoonmaker,  15  Sow.  Pr.  JfiO  ;  Young  v.  Sutton,  2  V.&  B. 
365  ;  Bex  v.  Bury,  Doug.  185,  note  ;  see  Owen's  Case,  2  Ves.  25  ;  Farewell  v.  Coker, 
2  P.  Wms.  4S0  ;  nor  the  body,  after  a  habeas  corpus,  Hopman  v.  Barber,  2  Str.  814. 

A  party  not  a  practicing  attorney  or  solicitor  cannot  be  entitled  to  costs  for 
practicing.  French  v.  Morgan,  1  Hogan  230  ;  Stewart  v.  N.  Y.,  10  Wend.  597 ; 
People  V.  Steuben,  12  Wend.  200  ;  Verplanck  v.  Mercantile  Ins.  Co.,  1  Edw.  Ch. 
46  ;  Gillis  V.  Holly,  19  Ala.  663.  In  Gordon  v.  Scott,  2  Bank.  Reg.  28,  a  party 
serving  the  subpoenas  on  his  own  witnesses  was  held  entitled  to  the  costs 
therefor.     See  Anon.,  Hal.  Dig.  240  §  8. 

Nor  one  pretending  to  be  an  attorney,  but  who  has  never  been  admitted. 
Coates  V.  Hawkyard,  1  Buss.  <&  Myl.  746  ;  WiUett  v.  Lord  Clifton,  Glassc.  254  ; 
Humphreys  v.  Harvey,  1  Bing.  N.  C.  62 ;  Jones  v.  Hayman,  Barn.  46 ;  Ames 
v.  Gilman,  10  Mete.  239  ;  PerMns  v.  McDuffee,  63  Me.  181 ;  Tedrick  v.  Miner, 
61  III.  189  ;  Bobb  v.  Smith,  3  Scam.  4^  ;  see  SUvens  v.  Fuller,  55  N.  H.  44^. 

A  solicitor's  being  temporarily  uncertificated  will  not  estop  liim.  Jones's 
Case,  L.  R.  [9  Eq.)  63 ;  Prior  v.  Moore,  2  M.  &  S.  605 ;  see,  however,  Sparling 
V.  Brereton,  L.  B.  {2  Eq.)  64;  Angell's  Case,  6D.&  L.144;  Fullalove  v.  Parker 
8  Jur.  {N.  S.)  1078;  Young  v.  Dowlman,  3  You.  &Jer.  24;  nor  affect  the  rights 
or  liabilities  of  the  parties  to  the  suit,  who  are  not  attorneys,  Reader  v.  Bloom, 
10  Moore  261,  3  Bing.  9;  Hop^s  Case,  L.  R.  {7  Ch.)  766. 

An  admission  in  another  court  lias  sometimes  been  deemed  sufficient.  Wil- 
kinson V.  Digged,  1  B.  &  C.  158;  Hulls  v.  Lea,  10  Q.  B.  940;  see  Evans  v.  Dun- 
comhe,  1  Cr.&  Jer.  372;  HiU  v.  Sydney,  7  Ad.  &  El.  956. 

Attorneys  who  are  partners  should  all  be  admitted  in  the  courts  in  which 
they  practice.  WiUett  v.  Lord  Clifton,  Glassc.  254  ;  Hittson  v.  Browne,  3  Gl.  SOS. 
Yet  it  seems  sufficient  to  recover,  that  one  of  them  has  been  admitted  in  the 
court  where  the  services  were  rendered.     Arden  v.  Tucker,  4  B.  &  Ad.  815  ; 


6  Stew.]  OCTOBER  TERM,  1880.  59 

Flaacke  v.  Jersey  City. 


ance  to  him  of  separate  filing-fees  for  the  answer  and  the  affi- 
davits and  schedules  annexed  thereto.  The  objection  to  the  cliarge 
for  drawing,  taxing  and  filing  costs  is  that  the  charge  is  $1.85, 
while  it  should  be  only  eighty-nine  cents,  made  up  as  follows  : 
thirty  cents  to  the  solicitor  for  drawing  the  bill  of  costs ;  thirty- 
eight  cents  to  the  clerk  for  taxing  it ;  nine  cents  for  filing,  and 
twelve  cents  for  a  copy.  The  solicitor  is  entitled  to  thirty  cents  a 
folio  for  drawing  the  bill.  If  the  bill  be  estimated  at  three  folios, 
as  it  appears  to  have  been  in  this  case  (and  whether  such  estimation 
is  right  or  not  is  a  mere  matter  of  computation),  the  solicitor  would 
be  entitled  to  ninety  cents  for  drawing  it.  The  clerk  performing  the 
solicitor's  work,  at  his  request,  charges  him  for  it  the  fees  to  which 
the  latter  is  entitled ;  and  for  convenience  in  keeping  accounts 

Harland  v.  Lilienthal,  5S  N.  Y.  438  ;  Turner  v.  Reynell,  U  C.  B.  {N.  S.)  328  ; 
Meddowcroft  v.  Holbrooke,  1  W.  Bl.  50 ;  see  McGill  v.  McOill,2  Mete.  [Ky.) 
25S  ;  Klingensmith  v.  Kepler,  41  Ind.  S4I ;  Jones  v.  Page,  44  -Ala.  657. 

The  omission  to  obtain  a  license  from  the  United  States  does  not  disqualify 
an  attorney  as  to  costs.  Harrington  v.  Edwards,  17  Wis.  586  ;  nor  the  omission 
of  a  stamp  from  his  certificate,  Middlelon  v.  Chambers,  1  M.  &  G.  97. 

Proceedings  against  one  not  nn  attorney,  if  he  held  himself  out  to  the  plain- 
tiff as  such,  will  not  be  set  aside.    Lloyd  v.  Fenton,  Hay.  &  Jon.  35. 

In  a  suit  against  an  attorney  he  cannot  conduct  his  defence  both  in  person 
and  by  attorney.  Robinson  v.  Palmer,  2  Allen  {N.  B.)  223  ;  Moscati  v.  Lawson, 
1  M.  &  Rob.  454  ;  ^ew  Brunswick  R.  R.  v.  Conybeare,  9  H  of  L.  Cos.  711 ;  but 
see  Bolan  v.  Egan,  2  Brev.  4^6 ;  Johns  v.  Bolton,  12  Pa.  St.  339  ;  Branson  v. 
(Jaruthers,  49  Col.  374;  Cobbett  v.  Hudson,  1  El.  &  Bl.  11. 

An  executor,  administrator,  guardian  or  trustee,  who  is  also  an  attorney, 
cannot  recover  for  professional  services  rendered  the  estate.  3  Wms.  on  Ears. 
{6th  Am.  erf.)  1854  iy)  &c.,  lS61{m)  ;  Willard  v.  Bassett,  27  III.  37;  Key's  Estate,  5 
La.  Ann.  567 ;  Allen  v.Jarvis,  L.  R.  (4  Oh.)  616;  Spinks  v.  Davis,  32  3fiss. 
152 ;  Christophers  v.  White,  10  Beav.  523 ;  Moore  v.  Froivd,  1  Jur.  653 ;  On- 
tario V.  Winnaker,  13  Granlfs  Ch.- 443 ;  Meighen  v.  Bell,  24  Grant's  Ch.  503; 
Broughton  v.  Broughton,  5  Be  G.  M.  &  G.  160  ;  Morgan  v.  Hannas,  49  N.  Y. 
667  ;  but  see  Stanes  v.  Parker,  9  Beav.  388,  and  cases  in  note ;  Harris  v.  Martin, 
9  Ala.  895  ;  Morgan  v.  Nelson,  43  Ala.  586  ;  Mumma's  Account,  5  Pa.  L.  J.  Rep . 
4^4  ;  Scott  V.  State,  2  Md.  284  ;  Clack  v.  Carton,  7  Jur.  {N.  S.)  441 ;  Hanson  v. 
Baillie,  2  Macq.  80  ;  Teague  v.  Corbitt,  57  Ala.  529  ;  Weighs  Case,  1  Fed.  Rep.  216. 

The  rule  does  not  apply  when  such  costs  are  not  payable  out  of  the  l.rust 
funds.     Col.  Co.  V.  Cameron,  24  Grani^s  Ch.  548. 

The  mayor  of  a  city  has  been  held  competent  to  act  as  its  attorney.  NUes 
V.  Muz:!y,  33  Mich.  61.  See  Gibson  v.  Zanesville,  31  Ohio  St.  IS4  ;  Powers  v.  De- 
catur, 54  Ala.  214  ;  but  in  Vin.  Abr.  Attorney  {k),  it  is  said  that  in  an  action 


60  CASES  IX  CHAXCERY.  [33  Eq. 

Flaacke  v.  Jersey  City. 

between  them,  places  the  charge  in  the  clerk's  column  instead  of 
the  solicitor's.  The  charge  of  $1.85  is,  if  the  bill  in  fact  con- 
tains three  folios,  correct.  The  objection  to  the  charge  for  entering 
appearance  is  that  fifty-two  cents  are  allowed  for  it,  whereas  but 
twenty  cents  should  hav^e  been  allowed.  Here,  again,  the  clerk  has 
done  the  solicitor's  work  and  charges  him  the  fees  to  which  the  lat- 
ter is  entitled  for  doing  it.  The  .solicitor's  fees  for  drawing  the  ap- 
pearance are  according  to  immemorial  practice,  there  being  no 
special  provision  for  this  work  in  the  fee  bill,  as  there  is  not  for 
his  compensation  for  drawing  a  bill  of  costs,  is  twenty  cents.  The 
clerk  was,  as  the  law  stood  when  the  appearance  was  entered, 
entitled  to  twelve  cents  for  filing,  and  to  twenty  cents  for  enter- 
ing the  appearance.     There  is  no  error  in  this  item. 

by  the  commonalty  of  a  town,  one  of  the  commonalty  cannot  appear  as  attor- 
ney for  the  commonalty,  for  he  is  party  to  the  action  ;  a  statute  prohibit- 
ing a  director  of  a  bank  to  appear  as  its  attorney  was  deemed  constitutional 
( West  Feliciana  E.  R.  v.  Johnson,  5  How.  (Miss.)  £75) ;  so  brokers  who  were  also 
attorneys  were  held  not  entitled  to  charge  counsel  fees  for  services  about  the 
business  of  their  employer  in  relation  to  lands  in  their  hands  as  such  brokers 
(  Walker  t.  American  Nat.  Bk.,  Jfi  N.  7.  659  ;  Dyer  v.  Sutherland,  75  1(1.  5S3)  ; 
nor  can  a  receiver  act  as  Lis  own  counsel  so  aa  to  charge  the  estate  for  his  ser- 
vices {Bank  of  Niagara  Case,  6  Paige  SIS ;  McGourky  v.  Downs,  MS.  N.  J. 
Chan.  May  Term,  1S80  ;  see  Adams  v.  Woodi,  S  Cal.  SSI ) ;  nor  can  one  mem- 
ber of  a  partnership  who  is  an  attorney,  charge  the  others  for  professional  ser- 
vices about  the  firm's  affairs,  either  before  or  after  dissolution  (Milburn  v.  Godd, 
7  B.&C.  4-19  ;  Van  Duzer  v.  McMiUan,  S7  Ga.299 ;  McCary  v.  Euddick,  SS 
Iowa  521) ;  nor  can  an  attorney  who  is  a  mortgagee  recover  his  costs  on  his 
own  foreclosure  (Scl-ater  v.  Cotlam,,  3  Jur.  {N.  S.)  6S0  ;  Patterson  v.  Donner,  4^ 
Cal.  S69) ;  nor  can  a  solicitor  who  has  an  interest  in  attending  to  a  cause, 
charge  for  his  services  without  an  express  agreement  (Martin  v.  Campbell,  11 
Rich.  Eq.SOo  ;  see  Deere  v.  Robinson,  7  HareSSS)  ;  but  he  would  be  liable  for 
costs  ( Voorhees  v.  McCartney,  51 N.  Y.  SS7  ;  Cone  v.  Donaldson,  47  Pa.  St.  S6S)  ; 
a  director  of  a  corporation  who  brought  suit  as  an  attorney  against  such 
corporation,  was  held  entitled  to  costs  {Christiev.  Sawyer,  44  N.H.Z98) ;  as  to 
a  stockholder  sustaining  such  relation,  see  {Spencex.  Whitaker,S  Port.  297). 

An  attorney  can  recover  ordinary  witness  fees  when  he  offers  himself  as  a 
witness  in  his  own  case  {Leaver  v.  Whalley,  S  Dowl.  80  ;  Taaks  v.  Schmidt,  25 
How.  Pr.  S4O) ;  or  is  called  in  another's  case  during  his  regular  attendance  at 
that  term  {Parks  v.  Brewer,  I4  Pick.  19S  ;  Marshall  v.  Parson.%  4  Jur.  1017; 
Abbott  V.  Johnson,  47  Wis.  239) ;  but  fees  when  so  in  attendance  were  refused  in 
Mc  Williams  v.  Hopkins,  1  Whart.  276  ;  Crumw  '.r  v.  Huff,  1  Wend.  25  ;  Joms 
V.  Botsford,  1  Pug.  &  E  u:  581 ;  see  Reynolds  v.  Walker,  7  Hill  144). 


6  Stew.]  OCTOBER  TEUM,  1880.  61 

Flaacke  v.  Jersey  City. 

These  charges  by  the  clerk  for  solicitor's  work  at  solicitor's 
rates,  have  the  sanction  of  very  long-continued  practice  through 
the  administration  of  various  clerks,  and  the  propriety  thereof 
seems  not  to  have  been  called  in  question.  They  are  just.  If 
made  in  the  solicitor's  column  of  the  bill  of  costs  there  would  be 
no  ground  for  challenging  them,  for  the  solicitor  is  entitled  to 
make  them.  From  time  immemorial  the  practice  has  been,  for 
convenience,  to  charge  them  in  the  clerk's  column.  It  of  course 
makes  no  difference  to  the  suitor  who  is  required  to  pay  them, 
whether  they  are  charged  in  the  one  or  the  other.  If  the  clerk 
does  such  work  for  the  solicitor  at  his  request,  the  fee  allowed  to 
the  latter  by  the  fee  bill  would  be  the  reasonable  compensation 
for  it. 


Where  the  cause  was  conducted  by  one  member  of  a  firm  of  attorneys,  the 
fees  of  another  member  called  as  a  witness  were  allowed  {Butler  v.  Hobsoru,  5 
Bing.  N.  C.  128,  1  Am.  4^4). 

Query,  whether  an  attorney  who  calls  himself  as  a  witness  can  now  recover 
his  fees,  since  other  parties  calling  themselves  cannot  (Orinnel  v.  Dennison,  12 
Wis.  402;  Hale  v.  Merrill,  27  Vt.  738;  Nichols  v.  Brunswick,  3  Cliff.  88;  Par- 
ker v.  Martin,  3  Pittsb.  166;  Grub  v.  Simpson,  6  Heisk.  92  ;  Delcomyn  v.  Cham- 
berlin,  48  How.  Pr.  409  ;  Stratton  v.  Upton,  36  N.  H.  581 ;  see  Howes  v.  Bar- 
ber, 18  Q.  B.  588). 

It  seems  a  co-defendant  who  attended  solely  as  a  witness  may  recover  {Barry 
V.  McGrade,  14  Minn.  286) ;  so  if  the  plaintiff  call  the  defendant  {Harvey  v. 
Tebbutt,  IJ.&W.  197 ;  Goodwin  v.  Smith,  68  Ind.  301;  Leeds  v.  Amherst,  U 
Sim.  357 ;  Young  v.  English,7  Beav.  10;  see  Hutchins  v.  Hutchins,  Ir.  L.  B. 
{10  Eq.)  453).  If  an  attorney  refuse  obedience  to  a  subpoena  he  can  be  pun- 
ished for  contempt  as  a  witness  only,  and  cannot  be  deprived  of  his  office  as 
attorney  {Com.  v.  Newman,  2  Phila.  262). 

If  an  attorney  bears  any  other  relation  to  the  subject  matter  of  the  suit  (e.  g.) 
as  an  agent,  auctioneer,  &c.,  the  court  will  not  exercise  summary  jurisdiction 
over  him  {Cocksv.Harman,  6  East  404;  Gruhb's  Case,  5  Taunt.  206 ;  Edwards 
V.  Hodding,  Id.  815  ;  Toms  &  Moor^s  Case,  3  Ch.  Cham.  41 ;  see  Dickson  v.  Wil- 
kinson, 4  Be  G.  &  J.  508  ;  GarroWa  Case,  2  Ch.  Cham.  323  ;  Allen  v.  Aldridge, 
5  Beav.  401 ;  Eawes  v.  Bawes,  7  Sim.  624;  Weeks  on  Attys.  U  77,  94;  Smith  v. 
McLendm,  59  Ga.  523;  Pennock  v.  Fuller,  41  Mich.  153;  17  Am.  Law  Beg.  {N. 
S.)  759  and  note). 

An  attorney  who  is  a  party  to  a  suit  is  entitled  to  recover  his  costs  {Gugy  v. 
Brown,  L.  R.  {1  P.  C.)  411,  reversing  S.  C.  11  Low.  Can.  409  ;  Jervis  v.  Bewes, 
4  Bowl.  P.  C.  764). 

He  can  recover  nothing  for  loss  of  time  {Pritchard  v.  Walker,  3  C.&  P.  21S  ; 


62  CASES  IN  CHAXCERY.  [33  Et,. 

Flaacke  v.  Jersey  City. 

The  construction  of  the  fee-bill  which  has  been  followed  in 
the  taxation  of  costs  for  filing  the  answer  and  its  accompanying 
affidavits,  &c.,  has  existed  for  very  many  years  and  under  differ- 
ent clerks  in  chancery,  and  though  the  attention  of  the  legislature 
appears  to  have  been  drawn  to  it  in  the  passage  of  the  act  of  1879 
(P.  L.  of  1S79  p.  103),  yet  it  left  the  construction  undisturbed 
except  in  the  respects  specified,  and  it  so,  by  implication,  recog- 
nized it.  By  that  act  it  is  provided  that  if  upon  any  j)aper  filed 
there  be  "  endorsed  any  return,  affidavit  of  service  or  of  non-resi- 
dence or  statements  of  sheriffs  on  executions,  or  masters'  fees,  or 
other  matter,"  but  one  fee  for  filing  such  paper  with  such  matter 
endorsed  thereon  shall  be  allowed.  It  will  be  seen  that  the  pro- 
hibition (for  such,  in  view  of  the  existence  of  the  practice  under 
consideration,  it  in  effect  is)  is  directed  merely  to  certain  endorse- 
ments, and  it  does  not  extend  by  its  terms  (nor  by  implication) 
to  affidavits  of  verification  and  schedules  attached  to  a  bill  or 
answer.  It  has  reference  to  returns  and  matters  of  a  like  char- 
acter, without  regard  to  the  mode  in  which  they  are  made,  whether 
it  be  by  statement  or  affidavit. 

All  the  cliarges  excepted  to  are  allowable,  except  the  retaining 
fee  in  Mr.  Mount's  bill.  It  does  not  appear  that  he  employed 
counsel,  and  therefore  a  retaining  fee  will  not  be  allowed.  As 
to  the  alleged  excess  in  the  charges  and  allowances  for  the  num- 
ber of  folios  in  papers,  those  errors,  if  they  exist,  are  of  course  to 
be  corrected.  Xo  costs  of  this  motion  will  be  awarded  to  either 
party. 

Collins  V.  Godefroy,  1  B.  &  Ad.  950  ;  see  Corley  v.  Moore,  Glaase.  S36 ;  Severn  v. 
Olive,  3  Irish  Law  Eec  193). 

He  is  not  obliged  to  pay  for  a  plea  where  he  himself  is  plaintiff  (Anon. 
Sayer  77). 

The  institution  of  county  courts  does  not  destroy  an  attorney's  privilege  as 
to  suing  and  being  sued  in  his  own  court,  and  subject  him  to  costs  for  not  re- 
covering more  than  the  amount  recoverable  in  the  inferior  court  (Lends  v. 
Hance,  5  D.  &  L.  64.I,  11  Q.  B.  921;  Jeffreys  v.  Beart,  Id.  64.6  ;  Jones  v.  Broton, 
3  Ezch.  329 ;  Johnson  v.  Bray,  2  B.  &  B.  698 ;  Borradaile  v.  Nelson,  U 
C  B.  655  ;  but  see  Bailey's  Case,  1  Johns.  Cos.  32  ;  Varian  v.  Ogilvie,  S  Johns. 
4^0 ;  Boullon  V.  Huhhard,  6  Johns.  332 ;  Walsh  v.  Sackrider,  7  Johns.  537 ; 
Foster  V.  Gamsey,  13  Johns.  465  ;  Wood  v.  Gibson,  1  Cow.  597  ;  Draper  v.  Beas- 
ley,  8  U.  C.  Q.  B.  260).—B.ep. 


6  Stew.]  OCTOBER  TERM,  1880.  63 

Dickinson  v.  City  of  Trenton. 


Samuel  M.  Dickinson 

V. 

The  Inhabitants  of  the  City  of  Teenton. 

1.  Where,  on  a  bill  to  remove  cloud  from  title,  arising  from  a  municipal  as- 
sessment and  sale  thereunder,  it  was  averred  merely  that  the  city  was  made  a 
party  to  a  suit  for  foreclosure  of  a  mortgage  on  the  premises,  and  a  decree  ob- 
tained therein,  and  the  premises  sold — Held,  on  demurrer,  that  such  decree 
and  proceedings  do  not  bar  the  city  from  selling  such  premises  under  a  valid 
assessment,  where  it  is  not  alleged  that  such  mortgage  was  prior  to  the  assess- 
ment, or  that  the  assessment  was  attacked  or  called  in  question  in  the  fore- 
closure suit,  or  the  city  called  on  to  redeem  because  the  assessment  may  have 
been  paramount  to  the  mortgage. 

2.  A  sale  under  a  decree  obtained  in  this  court  cannot  be  attacked  collater- 
ally by  setting  up  that  the  solicitor  who  acknowledged  service  of  the  sub- 
poena on  the  party  affected  by  it  in  the  suit  in  which  the  decree  was  made  had 
no  authority  to  do  so,  nor  that  the  ticket  accompanying  the  subpoena  did  not 
apprise  such  party  of  the  ground  on  which  he  was  made  defendant  to  the  suit 


Bill  to  remove  cloud  from  title.     Oa  demurrer  and  plea. 
Mr.  W.  L.  Dayton,  for  defendants. 

Mr.  S.  M.  Dickinson,  in  pro.  pef's. 

The  Chancellor. 

The  bill  is  filed  to  remove  a  cloud  from  title.  Its  object  is  to 
obtain  a  decree  declaring  null  a  certain  assessment  made  by  the 
city  of  Trenton,  under  its  charter,  upon  the  complainant's  land 
there,  for  a  municipal  improvement,  and  a  sale  made  thereunder 
to  the  city.  The  bill  alleges  that  the  assessment  and  sale  were 
illegal  and  invalid,  and  also  that  in  1876  a  mortgage  upon  the 
property  was  foreclosed  in  this  court,  in  a  suit  to  which  the  city 
was  a  party  defendant,  and  that  by  the  decree  in  that  suit  the 
city  was  foreclosed  of  all  title  to  the  premises  under  the  assess- 
ment. The  defendants  have  both  demurred  and  pleaded.  By 
the  plea  they  plead  that  the  validity  of  the  assessment  has  been 


64  CASES  IN  CHANCERY.  [33  Eq. 

Dickinson  v.  City  of  Trenton. 

duly  and  conclusively  established  at  law,  and  they  plead  also  that 
they  were  not  served  with  process  of  subpoena  in  the  foreclosure 
suit,  and  that  though  service  of  subpoena,  therein  on  them  was  ac- 
knowledged by  a  solicitor  of  this  court,  as  "  city  solicitor  "  of 
Trenton,  he  had  no  authority  to  acknowledge  such  service ;  and 
further,  that  the  ticket  accompanying  the  subpoena  did  not  men- 
tion the  assessment,  but  only  an  inconsiderable  tax  which  had 
been  assessed  upon  the  property.  It  is  admitted  by  the  complain- 
ant that  the  plea  is  good  so  far  as  the  validity  of  the  assessment 
and  sale  is  concerned,  irrespective  of  the  bar  of  the  decree  in  the 
foreclosure  suit,  and  that  the  bill  cannot  be  maintained  except  on 
the  ground  of  that  bar.  To  consider  the  claim  of  bar  as  made 
by  the  bill : 

It  does  not  appear  by  the  bill  that  the  defendants  were  made 
parties  to  the  foreclosure  suit  with  respect  to  the  assessment  in 
question.  It  does  not  appear  that  it  was  alleged  in  the  bill  that 
the  mortgage  was  prior  in  date  to  the  assessment,  or  that  the  as- 
sessment was  attacked  or  called  in  question  in  any  way  whatever 
in  the  suit,  but  merely  that  the  city  was  a  defendant,  and,  by  the 
terms  of  the  decree,  was  foreclosed  of  all  estate,  right,  title  and 
interest  in  the  mortgaged  premises,  when  sold  under  the  decree, 
and  that  the  complainant  in  this  suit  was  the  purchaser  of  the 
property  at  the  sheriff's  sale  under  the  decree.  The  averments 
of  the  bill  in  this  respect  are  not  sufficient  to  constitute  any  bar 
to  the  claim  of  the  city  under  the  assessment.  Though  the  city 
was  a  defendant  to  the  suit,  yet  if  it  was  not  called  upon  therein 
to  answer  as  to  the  validity  or  lien  of  the  assessment,  or  the 
validity  of  the  sale  under  it,  it  is  not  barred  by  the  decree.  The 
object  of  the  foreclosure  suit  was  to  foreclose  the  equity  of  re- 
demption of  the  defendants  in  the  property.  But  if  the  city  had 
a  title  or  claim  paramount  to  the  mortgage,  it  obviously  was  not 
embraced  even  in  the  terms  of  the  barring  clause  of  the  decree ; 
for  it  had  no  equity  of  redemption  with  respect  to  such  claim,  so 
far  as  the  mortgage  of  the  complainant  in  that  suit  was  concerned, 
but  as  to  such  pi-ior  claim  it  was  the  complainant  in  the  suit  who 
had  an  equity  to  redeem  it.  Where  a  widow  was  made  a  party 
defendant  to  a  bill  for  foreclosure,  on  other  grounds  than  her 


6  Stew.]  OCTOBER  TERM,  1880.  65 

Dickinson  v.  City  of  Trenton. 

claim  to  dower  in  the  mortgaged  premises,  it  was  held  that  her 
right  to  dower  was  not  affected  by  the  decree.  Wade  v.  Miller^ 
3  Vr.  S96.  See,  also,  Wilkins  v.  KirJcbride,  12  C.  E.  Gr.  93  ;  and 
Laois  V.  Smith,  9  N.  Y.  502.  And  where,  in  a  suit  at  law,  a  decree 
in  a  suit  in  equity  was  relied  upon  as  a  defence,  and  it  appeared,  by 
comparison  of  the  decree  with  the  issue  in  the  suit  in  which 
it  was  made,  that  that  part  of  it  on  which  the  defendant's  defence 
in  the  suit  at  law  depended  was  outside  of  the  issue,  it  was  held 
that  the  decree  was  a  nullity  as  to  that  part,  although  the  plain- 
tiff was  a  party  to  the  suit.  Munday  v.  Vail,  5  Vr.  Jf.18.  To 
illustrate  further :  If,  in  a  foreclosure  suit  brought  on  a  second 
mortgage,  the  holder  of  a  prior  encumbrance  is  made  a  party,  not 
with  respect  to  that  encumbrance,  but  of  some  other  one  subse- 
quent to  that  of  the  complainant,  and  the  prior  encumbrance  is 
not  assailed  or  mentioned  in  the  bill,  it  is  obvious  that  he  would 
not  be  barred  of  his  claim  under  his  prior  encumbrance  by  the 
words  of  foreclosure  and  bar  in  the  decree.  Inasmuch  as  it  does 
not  appear,  by  the  averments  of  the  bill  in  this  case,  that  the  as- 
sessment or  the  sale  under  it  was  in  anywise  called  in  question  in 
the  foreclosure  suit,  or  the  city  therein  called  on  to  redeem  with 
respect  to  its  claim  under  them,  it  does  not  appear  that  the 
decree  is  a  bar.  The  averments  of  the  bill  on  this  head  are  there- 
fore insufficient. 

Nor  would  the  plea  have  been  good  if  the  averments  of  the 
bill  had  been  sufficient.  If  the  solicitor  by  whom  the  service  of 
subpoena  was  acknowledged  was  not  authorized  to  do  so,  and  if 
the  ticket  accompanying  the  subpoena  did  not  mention  the  assess- 
ment or  sale  thereunder,  the  fact  cannot  avail  the  defendants  as 
a  bar  to  the  claim  of  the  complainant  under  the  sheriff's  deed. 
The  decree  is  his  protection  against  all  irregularities  in  the  pro- 
ceedings up  to  the  decree.  The  rule  is  laid  down  by  the  court 
of  errors  and  appeals  that  the  decision  of  a  domestic  court  of 
general  jurisdiction,  acting  within  the  scope  of  its  powers,  has  in- 
herent in  it  such  conclusive  force  that  it  cannot  be  challenged 
collaterally,  and  it  definitively  binds  all  parties  embraced  in  it, 

5 


66  CASES  IX  CHANCERY.  [33  Eq. 

Hankinson  v.  Hankinson. 

unless  on  objection  made  to  such  court  itself,  or  in  a  direct  course 
of  appellate  procedure.  McCahiU  v.  Equitable  Life  Assurance 
Soc,  11  a  E.  Gr.  531. 


Edith  Hankinson 

V. 

Samuel  E.  Hankinson. 


The  separation  of  a  husband  and  wife,  acquiesced  in  by  the  wife,  and  which 

she  did  much  to  bring  about,  however  long  continued,  does  not  constitute  de- 
sertion to  authorize  a  divorce  on  her  petition.  Such  a  separation,  however, 
would  become  desertion  from  the  time  the  complaining  party  makes  sincere 
overtures  to  terminate  it. 


Petition  for  divorce.     On  pleadings  and  proofs. 
Mr.  1.  R.  Wilson,  for  petitioner. 
Mr.  E.  W.  Evans,  for  defendant. 

The  Chancellor. 

The  petitioner  prays  a  divorce  from  her  husband,  on  the 
ground  of  desertion.  By  the  petition  she  alleges  that  he  de- 
serted her  in  October,  1874.  He,  though  he  does  not,  by  his 
answer,  expressly  deny  the  charge,  does  so  substantially,  setting 
forth  the  circumstances  of  the  separation,  which  he  attributes 
wholly  to  his  wife,  and  alleging  that  as  long  ago  as  1873  she  de- 
termined that  she  would  not  live  with  him,  and  has  adhered  to 
such  determination.  He  avers  that  he  has  been  willing  at  all 
times  since  then  to  support  her  and  his  children,  as  far  as  his 
wages  would  go,  and  that  he  has  clothed  one  of  the  children,  but 
that  his  wife  has  resolved  not  to  live  with  him.  The  parties 
were  married  in  1866,  and  they  have  ever  since  resided  in 
Trenton.  Their  separation  began  in  October,  1873,  up  to  which 
time  they  had   lived  together  as  husband  and  wife.     In  that 


6  Stew.]  OCTOBER  TERM,  1880.  67 

Hankinson  v.  Hankinson. 

month  the  petitioner's  mother  died,  and  very  soon  after  the 
funeral  the  petitioner  left  her  husband  to  go  to  Maryland,  on  a 
visit  to  her  sister,  who  lived  there.  She  appears  to  have  been 
absent  (returning  in  the  meantime  to  Trenton  for  a  day)  for 
several  weeks.  During  her  absence,  the  defendant  lived  at  his 
father's  house,  which  was  near  the  house  in  which  the  parties 
resided  when  the  separation  began.  The  petitioner  returned  to 
tlie  latter  house  (which  belonged  to  her  mother's  estate),  when  she 
came  from  Maryland,  and  ever  since  then  the  separation  has 
continued.  The  relations  between  them  prior  to  her  mother's 
death  were  not  pleasant.  Her  mother  lived  in  their  family,  and 
for  six  months  before  her  mother's  death  the  petitioner  refused 
to  speak  to  her  husband.  The  reason  seems  to  have  been  his 
refusal  to  speak  to  her  mother,  between  whom  and  him  there 
were  unpleasaut  feelings,  arising  out  of  his  objection  to  the  fre- 
quent visits  and  continued  stay  of  her  sister  and  her  child  to  the 
house.  On  the  day  her  mother  died,  he  offered  his  wife  his  con- 
dolence, and  proffered  his  services  in  regard  to  the  funeral 
arrangements,  but  she  declined  them,  saying  that  he  had  done 
nothing  for  her  mother  when  she  was  living,  and  that  she  did 
not  want  him  to  do  anything  for  her  then.  For  six  months 
before  that  time  he  had  taken  all  his  meals  at  his  father's  house, 
and  his  mother  did  most  of  the  mending  of  his  clothing.  Ac- 
cording to  all  the  testimony,  he  never  treated  his  wife  unkindly. 
He  testifies  that  on  the  morning  after  the  funeral  (he  thinks  it 
was  the  8th  of  October,  1873),  his  wife  came  into  his  room  when 
he  was  dressing  to  go  to  his  work  (he  is  a  carpenter),  and  asked 
him  if  he  thought  as  much  of  the  children  as  she  did ;  to  which 
he  replied  that  he  did  not  know  how  much  she  thought  of  them, 
but  he  thought  a  good  deal  of  them ;  that  she  then  said  that  she 
had  a  proposition  to  make  to  him,  and  it  was  this :  that  if  he 
would  give  her  six  dollars  a  week,  as  he  had  theretofore,  he 
could  come  to  the  house  and  sleep,  as  he  had  been  doing,  but 
should  take  his  meals  at  his  father's ;  for  as  to  living  with  him 
as  his  wife,  she  had  promised  her  mother  that  after  the  latter 
was  dead  and  buried  she  would  never  do  it.  He  says  she  added 
that  she  asked  no  odds  of  him,  that  she  had  plenty  of  money  to 


68  CASES  IX  CHAXCERY.  [33  Eq. 

Hankinson  v.  Hankinson. 

keep  herself,  and  if  he  would  not  do  as  she  proposed,  he  should 
not  be  there  with  the  children.  He  further  says  that  she  then 
told  him  that  she  was  going  away  from  Trenton,  and  did  not 
know  how  long  she  would  be  gone — that  she  was  going  home 
with  her  sister.  Two  or  three  days  after  that  she  left  for  Mary- 
land, and  was  gone,  he  says,  until  sometime  in  the  latter  part  of 
the  following  month.  He  asked  her  if  she  would  not  write  to 
him  while  she  was  away,  and  let  him  know  how  the  children  were, 
and  she  said  she  would  not.  She  denies  that  she  told  him  what  he 
swears  she  did  in  the  conversation  above  stated,  said  to  have  taken 
place  on  the  8th  of  October.  There  is  some  corroboration,  however, 
of  his  testimony  in  that  of  the  witness  Albertson.  She  is  not  cor- 
roborated in  any  way;  and  I  see  no  reason  for  refusing  to  the 
defendant's  testimony,  if  uncorroborated,  at  least  as  much  confi- 
dence as  to  hers,  equally  unsupported.  He  says  that  when  she 
went  away,  he  did  not  know  that  she  was  going  to  leave  on  that 
day,  and  that  she  caused  his  trunk,  containing  his  underclothing, 
to  be  set  out  on  the  back  piazza  of  the  house  in  which  they 
lived,  and  such  of  his  outside  clothing  as  he  kept  in  his  room,  to 
be  placed  on  top  of  it,  wrapped  in  paper,  and  locked  up  the  house 
and  went  away  in  his  absence.  She  and  some  of  her  witnesses  say 
that  he  himself  caused  the  trunk  and  underclothing  to  be  placed 
there,  in  view  of  her  intended  departure.  She  did  not  write  to 
him  while  she  was  absent,  nor  did  she  send  him  any  message. 
She  returned  for  a  day  (to  get  some  money  to  pay  her  board  iu 
Maryland,  she  says),  but  did  not  go  to  see  him,  nor  inform  him, 
or  attempt  to  inform  him,  in  any  way,  of  her  presence  iu 
Trenton.  When  she  returned  to  Trenton  to  stay,  she  sent  him 
word,  she  says,  that  she  and  the  children  had  returned.  He 
denies  that  he  received  any  notification  whatever.  From  that 
time  to  this  they  have  lived  near  each  other — she  in  the  house 
in  which  they  had  previously  lived,  and  he  at  his  father's,  near 
by.  Their  two  children  have  lived  with  her.  They  have  visited 
him,  and  he  has  bought  clothes  for  the  boy,  but  never  has  beeu 
requested  to  do  anything  for  the  girl.  He  and  his  wife  have 
never  spoken  to  each  other  but  once  in  all  that  time.  She  has 
never  asked  for  any  money,  or  any  assistance  of  any  kind,  from 


6  Stew.]  OCTOBER  TERM,  1880.  69 

Hankinson  v.  Hankinson. 

him,  but  has  lived  on  her  income  received  from  her  property 
and  her  profits  in  keeping  boarders.  She  has  said  (but  not  to 
liim),  within  a  few  months  before  this  suit  was  brought,  that  she 
was  willing  to  live  with  him  if  he  would  return  to  her,  and  there 
is  evidence  that  he  has  said,  within  the  same  time,  that  he  would 
not  live  with  her  again.  It  is  also  proved  that  he  has  also  said 
he  was  willing  to  assist  her  in  any  way,  if  she  wanted  his  assist- 
ance. She  says  that  the  reason  why  he  would  not  live  with  her 
was  because  of  her  unwillingness  to  give  him  control  of  her 
property ;  but  there  is  no  evidence  of  it. 

A  full  and  careful  consideration  of  the  evidence  leads  me  to 
the  conclusion  that  the  separation  between  these  parties  was  not 
sought  by  the  defendant,  and  that  it  has  not  been  without  the 
consent  or  against  the  will  of  the  petitioner.  She  has  never 
even  intimated  to  his  father  or  mother,  with  both  of  whom  she 
has  been  on  friendly  terms,  any  desire  that  he  should  live  with 
her.  His  mother  says  that  the  petitioner  has  never  mentioned 
his  name  to  her  since  the  separation.  She  has  never  spoken  to, 
or  communicated  with,  her  husband  but  once  since  the  separa- 
tion, and  that  was  shortly  after  her  return  from  Maryland,  and 
then  the  conversation  was  about  his  paying  for  a  pair  of  shoes 
which  she  says  he  ordered  for  the  girl  when  she  went  to  IVIary- 
land,  and  refused  to  pay  for,  but  which  he  denies  that  he 
ordered.  When  they  have  met  in  the  street  they  have  not 
spoken  to  each  other.  He  says  she  would  turn  her  head  away 
from  him  when  they  met.  There  has,  indeed,  been  a  cessation 
of  cohabitation,  but  that  it  has  been  with  her  hearty  acquies- 
cence is  evident  from  their  relations  to  each  other  before  it  be- 
gan and  her  conduct  towards  him  since  it  has  continued.  When 
inquired  of  on  the  witness-stand  as  to  whether  she  had  made  any 
overtures  to  her  husband,  she  answered  that  she  had  not,  and 
gave  as  her  reason  that  it  was  as  much  his  duty  to  seek  her  as  it 
was  hers  to  seek  him.  The  testimony  is,  on  many  points,  con- 
flicting and  positively  contradictory,  and  some  of  the  witnesses 
are  not  such  as  to  inspire  confidence.  The  testimony  of  the 
petitioner  herself  is  by  no  means  free  from  criticism.  She  evi- 
dently testifies  under  a  strong  bias.     Enough  appears  from  the 


70  CASES  IN  CHANCERY.  [33  Eq. 

Hankinson  v.  Ilankinson. 

testimony  as  a  whole,  however,  to  warrant  the  conchision  that 
the  separation  complained  of  was,  to  say  the  least  of  it,  not 
against  her  will,  and  that  she,  at  least,  cheerfully  acquiesced  in  it. 
"SYhere,  from  mutual  dislike,  incompatibility  of  temper,  uncou- 
geniality  or  other  cause,  husband  and  wife  voluntarily  separate, 
such  separation,  however  long  continued,  will  not  of  itself  con- 
stitute desertion  on  either  side,  withiu  the  meaning  of  the 
statute.  It  will  become  a  desertion,  however,  from  the  time 
when  a  reuewal  of  marital  coliabitatiou  is  sincerely  sought,  or, 
in  other  words,  from  the  period  when  the  mutual  acquiescence  in 
the  separation  is  put  at  an  end  by  the  overtures  of  the  complain- 
ing party.  Had  the  petitioner,  at  any  time  during  the  separa- 
tion, communicated  to  her  husband  her  wish  that  he  would,  or 
willingness  that  he  should,  live  with  her  as  her  husband,  and  he 
had  refused,  from  that  time  he  would  have  been  chargeable  with 
desertion.  But  there  is  no  evidence  on  which  any  reliance  can 
be  placed,  of  any  such  desire  or  willingness  on  her  })art.  She 
says  that  when  she  returned  from  Maryland  she  sent  the  children 
to  his  father's  house,  to  inform  him  that  "  they  had  got  home." 
One  of  the  children — the  girl — was  then  about  five  years  old, 
and  the  other — the  boy — only  between  two  and  three.  The  girl 
testifies,  indeed  (when  she  was  sworn  she  was  between  eleven  and 
twelve  years  old),  that  she  told  him  that  "  they  had  got  home, 
and  asked  him  if  he  was  not  going  to  live  with  them  again," 
and  that  he  replied,  "No;  but  it  is  all  right."  The  petitioner, 
liowever,  does  not  say  that  she  told  her  to  ask  the  question ; 
and  if  the  relations  between  her  and  her  husband  were  not  un- 
pleasant when  she  went  away  (and  she  went,  she  says,  to  Mary- 
laud  with  his  consent,  and  merely  on  a  visit),  it  does  not  appear 
why  she  should  have  asked  such  a  question,  involving,  as  it  did, 
the  suggestion  that  he  had  abandoned  her — which,  according  to 
her  testimony,  she  had  no  reason  whatever  to  suspect.  It  does 
not  appear  that  he  had  separated  himself  from  her  at  all  then, 
except  in  accordance  with  her  desire  and  for  her  accommodation, 
to  enable  her  to  visit  her  sister.  On  the  other  hand,  the  defend- 
ant swears  that  he  did  not  receive  any  message  whatever  from 
her  by  the  children,  but  that  he  first  saw  them  in  the  street,  and 


6  Stew.]  OCTOBER  TERM,  1880.  71 

Hankinson  v.  Hankinson. 

they  avoided  him,  and  he  was  compelled  to  employ  the  kind 
offices  of  a  friend  to  induce  them  to  come  to  him.  Again,  as 
before  stated,  the  daughter,  at  the  time  of  the  alleged  message, 
was  but  five  years  old.  For  that  reason,  if  for  no  other,  her 
testimony  on  the  subject  cannot  outweigh  the  sworn  denial  of  the 
defendant.  The  petitioner  has  never,  according  to  her  own  tes- 
timony, sent  a  kind  or  conciliatory  message  to  her  husband, 
but  has  treated  him  with  unconcern,  if  not  with  evidences  of 
positive  dislike.  Her  attitude  has  been  that  of  acquiescence,  at 
least,  in  a  separation  which  she  appears  to  have  done  much  to 
bring  about,  and  which  does  not  appear  to  have  been  at  any 
time  against  her  will.  She  has  never  complained  that  he  did  not 
live  with  her.  She  would,  apparently,  have  been  entirely  satis- 
fied if  he  had  supported  her  and  the  children,  even  though  he 
lived  separate  from  her.  She  does  not  appear  to  have  desired 
his  society,  but  the  contrary.  Both  parties  are  in  the  wrong.  It 
is  not  profitable  to  inquire  on  which  side  the  preponderance  is. 
For  the  sake  of  their  children,  they  ought  not  to  have  been  sat- 
isfied to  live  separate  from  each  other,  but  should  have  en- 
deavored to  effect  a  reconciliation.  They  have  not  done  so.  The 
separation  which  has  existed  is  not,  on  either  side,  desertion, 
within  the  meaning  of  the  statute.  It  has  been  frequently  held 
that  the  separation  which  constitutes  desertion  must  have  been 
against  the  will  of  the  complainant.  Moores  v.  Moores,  1  C.  E. 
Gh\  276;  Bowlhy  v.  Bowlby,  10  C.  E,  Gr.  Jfi6 ;  S.  O.  on  ap- 
peal, Id.  570;  Belton  v.  Belton,  11  C.  E.  Gr.  449;  Tayhr  v. 
Taylor,  1  Stew.  Eq.  207. 
The  petition  will  be  dismissed. 


72  CASES  IX  CHANCERY.  [33  Eq. 

Davis  I'.  Howell. 


"WiLixiAM  M.  Davis,  assignee,  &c., 


Joseph  Howell,  assignee,  &e. 

On  marshaling  the  assets  of  both  partnership  and  individual  estates,  under 
separate  assignments  for  the  benefit  of  creditors,  the  partnership  creditors  are 
not  entitled,  aft«r  exhausting  the  partnership  assets,  to  resort  to  the  individual 
assets  untU  after  the  individual  creditors'  claims  have  been  satisfied. 


Bill  for  relief.     On  final  hearing  on  bill  and  answer. 

Mr.  J.  F.  Dumont,  for  complainant. 

Mr.  G.  31.  Shipman  and  Mr,  J.  G.  Shipman  for  answering 
defendants. 

The  Chancelloe. 

John  C.  Bennett  and  James  M.  Andrews  were,  on  or  about 
the  10th  of  February,  1876,  partners  in  business  in  Phillipsburg. 
On  that  day  they  made  an  assignment  under  the  assignment  act, 
for  the  equal  benefit  of  their  creditors,  to  the  complainant,  Wil- 
liam M.  Davis.  Five  days  after  the  making  of  that  assignment 
Andrews  made  an  assignment,  under  the  act  for  the  equal  benefit 
of  his  creditors,  to  the  complainant  and  Joseph  Howell,  and 
about  the  same  time  Bennett  made  a  like  assignment  to  Sylvester 
A.  Comstock  and  Charles  F.  Fitch.  The  partnership  estate 
will  pay  a  dividend  of  only  about  eleven  per  cent,  of  the  part- 
nership debts.  Most  of  the  partnership  creditors  have  put  in 
their  claims  under  the  assignment  of  Andrews,  and  claim  and 
insist  upon  a  proportionate  participation  with  his  individual 
creditors  therein  as  to  so  much  of  their  claims  as  may  not  be  paid 
out  of  the  partnership  estate,  and  they  threaten  the  complainant 
and  his  co-assignee  of  Andrews's  estate  with  legal  proceedings  if 
their  demand  be  not  complied  with.     The  complainant  therefore 

NoTK.— See  Rmodl  v.  Teel,  S  Stew.  Eq.  490,  note.— Rep. 


6  Stew.]  OCTOBER  TERM,  1880.  73 

Davis  V.  Howell. 

comes  into  this  court  for  protection  and  instructions  as  to  his 
duty  in  the  premises.  His  co-assignee,  Howell,  is  a  creditor  of 
Andrews's  estate,  and  he  is  made  a  defendant. 

The  question  presented  has  been  often  discussed,  and,  though 
there  exists  some  contrariety  of  judicial  determination  upon  it, 
must  be  considered  as  settled  by  the  great  weight  of  authority. 
The  rule  is  laid  down  in  the  text-books  that  joint  debts  are  enti- 
tled to  priority  of  payment  out  of  the  joint  estate,  and  separate 
debts  out  of  the  separate  estate.  Story's  Eq,  Jur.  §  675 ; 
Snell's  Prin.  of  Eq.  P9 ;  Story  on  Part.  ^  376;  Kent's  Com. 
6J{,,  65 ;  Parsom  on  Part.  Jf80.  And  though  the  propriety  of 
the  rule  has  been  often  and  persistently  questioned  on  the  ground 
that  it  is  a  violation  of  principle,  and  devoid  of  equity,  and  was 
originally  adopted  from  considerations  of  convenience  only,  and 
in  bankruptcy  cases,  and  not  on  principles  of  general  equity,  yet 
it  is  so  firmly  established  that  it  must  be  regarded  as  a  fixed  rule 
of  equity.  Its  history  is  so  well  known,  and  has  been  so  often 
stated,  that  it  is  profitless  to  repeat  it.  It  was  declared  in  1715, 
in  Ex  "parte  Orowder,  2  Vern.  706 ;  it  was  affirmed  by  Lord 
Hardwicke,  and  though  Lord  Thurlow  refused  to  follow  it, 
it  was  restored  by  Lord  Loughborough  and  followed  by  Lord 
Eldon,  and  it  has  existed  ever  since  in  the  English  chancery.  It 
has  an  exception  where  there  is  no  joint  estate  and  no  solvent 
partner.  But  where  there  is  any  joint  estate  the  rule  is  to  be 
applied.  That  part  of  the  rule  which  gives  the  joint  creditors  a 
preference  upon  the  joint  estate  has  been  repeatedly  recognized  in 
this  state.  Camniach  v.  Johnson,  1  Gr.  Ch.  163 ;  Matlack  v. 
James,  2  Beas.  126;  Mittnight  v.  Smith,  2  C.  E.  Gr.  259;  Scull 
V.  Alter,  1  Harr.  14-7 ;  Curtis  v.  Hollingshead,  2  Gr.  4^2; 
Brown  v.  Bissett,  1  Zab.  Ifi  ;  Linford  v.  Linford,  If.  Dutch.  113. 
In  Scull  V.  Alter  the  supreme  court  recognized  the  rule  in  all  its 
parts.  Chief  Justice  Hornblower,  by  whom  the  opinion  of  the 
court  was  delivered  (the  question  arose  under  an  assignment  un- 
der the  assignment  act,  and  was  the  same  as  is  presented  in  this 
case),  said :  "  But  if  it  is  an  assignment  not  only  of  the  partner- 
ship effects  and  property  of  the  firm  of  Carhart  &  Britton,  but 
also  an  individual  and  several    assignment    by    them   of  their 


74  CASES  IN  CHANCERY.  [33  Eq. 

Davis  V.  Howell. 

respective  and  several  estates,  then  it  must  be  treated  as  such. 
The  estates  and  debts  must  be  marshaled ;  the  partnership  effects 
applied  in  the  first  instance  to  the  partnership  debts  ;  the  effects 
of  Carhart  applied  in  the  first  instance  to  the  payment  of  his 
separate  debts,  and  in  like  manner  the  effects  of  Britton  to  the 
payment  of  debts  due  from  him  individually." 

In  Connecticut  the  rule  is  not  followed,  and  that  part  of  it 
which  gives  the  separate  creditors  a  preference  upon  the  separate 
estate  has  been  repudiated.  Camp  v.  Grant,  SI  Conn.  J^l.  It 
has  been  repudiated  also  in  certain  other  states.  Bardwell  v. 
Ferry,  19  Vt  292;  Emanuel  v.  Bird,  19  Ala.  596.  But  the 
doctrine  is  recognized  elsewhere,  and  has  been  established  after 
thorough  discussion  and  careful  consideration.  In  Wilder  v. 
Keeler,  3  Paige  167,  Chancellor  Walworth,  after  a  full  discussion 
of  the  subject,  gives  the  sanction  of  his  weighty  opinion  to  the 
rule  as  a  doctrine  of  equity.  He  says :  "  In  the  case  now  under 
consideration  there  was,  at  the  death  of  G.  F.  Lush,  a  large  joint 
fund  belonging  to  the  partnership,  out  of  which  the  joint  cred- 
itors were  entitled  to  a  priority  of  payment,  and  out  of  which 
several  of  the  joint  creditors  who  have  come  in  under  this  de- 
cree, have  actually  secured  a  portion  of  their  debts.  Nothing 
but  an  unbending  rule  of  law  should,  under  such  circumstances, 
induce  the  court  to  permit  them  to  come  in  for  the  residue  of 
their  debts,  ratably,  with  the  separate  creditors.  The  amount  of 
the  fund  which  will  remain  after  paying  the  separate  creditors 
being  a  fund  which  could  not  be  reached  at  law  by  the  joint 
creditors  whose  remedy  survived  against  the  surviving  partner 
alone,  must  be  considered  in  the  nature  of  equitable  assets,  and 
must  be  distributed  among  the  joint  creditors,  upon  the  principle 
of  this  court  that  equality  is  equity."  The  doctrine  was  recog- 
nized in  Morgan  v.  Skidmore,  55  Barb.  263.  In  Pennsylvania 
in  Bell  V.  Newinan,  5  S.  &  R.  78,  91,  92,  Gibson  (afterwards 
chief-justice),  in  a  dissenting  opinion,  strongly  supports  the  rule 
as  one  founded  on  the  most  substantial  justice.  In  Blacks  Ap- 
peal, 44  -f*"'  St.  503,  and  again  in  McCormack^s  Appeal,  55  Pa. 
St,  252,  the  doctrine  is  completely  recognized  and  affirmed.  In 
South  Carolina,  in  Woddrop  v.  Price,  3  Desauss.  203  ;  Tunno  v. 


6  Stew.]  OCTOBER  TERM,  1880.  75 


Davis  V.  Howell. 


Trezevant,  2  Desauss.  364,  aud  Rail  v.  Hall,  2  MeCord's  Ch.  S69, 
the  doctrine  was  held  to  be  a  doctrine  of  equity.  In  Massachu- 
setts it  is  established  by  statute.  In  Ilurrill  v.  Neill,  8  How. 
414,  it  is  recognized  by  the  supreme  court  of  the  United  States. 
The  objection  that  is  always  pressed  as  the  conclusive  argument 
against  it  is,  that  partnership  debts  are  several  as  well  as  joint, 
and  it  is  urged  that  therefore  the  partnership  creditor  has  an 
equal  claim  upon  the  individual  estate  with  the  separate  creditor. 
But  it  is  beyond  dispute  that  in  equity  the  former  has  a  preferred 
claim  upon  the  partnership  estate.  To  accord  to  him  an  equal 
claim  as  to  the  balance  of  his  debt,  which  the  partnership  assets 
may  not  be  sufficient  to  satisfy,  with  the  individual  creditor, 
would  be  to  give  him  an  advantage  to  which  he  is  not  equitably 
entitled.  If  he  obtains  a  legal  lien  on  the  separate  estate  he  will 
not  be  deprived  of  it.  Wisham  v.  Lippincott,  1  Stock.  S53 ; 
Randolph  v.  Daly,  1  C.  E.  Gr.  313 ;  National  Bank  v.  Sprague, 
5  O.  E.  Gr.  13;  Howell  v.  Teel,  2  Stew.  Eq.  IfiO.  But  if 
he  has  no  such  lien,  and  the  assets  are  to  be  marshaled  in 
equity,  that  same  equitable  doctrine  by  which  the  partnership 
assets  are  devoted  in  the  first  place  to  the  payment  of  his  debt  to 
the  exclusion  of  the  separate  creditor,  and  to  which  he  is  indebted 
for  the  preference,  will,  in  like  manner  and  for  like  reason,  give 
the  latter  preference  upon  the  separate  property.  Such  was  the 
view  of  Chancellor  Kent.  He  says  :  "So  far  as  the  partnership 
property  has  been  acquired  by  means  of  partnership  debts,  those 
debts  have,  in  equity,  a  priority  of  claim  to  be  discharged,  and  the 
separate  creditors  are  only  entitled  in  equity  to  such  payment 
from  the  surplus  of  the  joint  fund  after  satisfaction  of  the  joint 
debts.  The  equity  of  the  rule,  on  the  other  hand,  equally  re- 
quires that  the  joint  creditors  should  only  look  to  the  surplus  of 
the  separate  estates  of  the  partners  after  payment  of  the  separate 
debts.  It  was  a  principle  of  the  Roman  law,  and  it  has  been 
acknowledged  in  the  equity  jurisprudence  of  Spain,  England 
and  the  United  States,  that  partnership  debts  must  be  paid  out 
of  the  partnership  estate,  and  private  and  separate  debts  out  of 
the  private  and  separate  estate  of  the  individual  partner." 
3  Kenis  Com.  64,  65.     The  obvious   infirmity  of  the  objection 


76  CASES  IX  CHANCERY.  [33  Eq. 

Davis  V.  Howell. 

to  the  rule  is,  that  it  leaves  out  of  consideration  the  fact  that  it  is 
to  equity  that  the  joint  ere<litor  is  indebted  for  his  preference.  It 
is  also  urged  that  instead  of  the  rule,  it  would  be  more  equitable 
to  require  the  joint  creditor  to  have  recourse  to  the  partnership 
property  before  allowing  him  to  participate  in  the  separate  estate, 
on  the  equitable  ground  that  he  has  two  funds  for  the  payment 
of  his  debt,  while  the  separate  creditor  has  but  one ;  but  tlie  rule 
as  established  is  a  rule  of  justice  and  equity.  It  has  for  its 
basis  the  presumption  that  joint  debts  have  been  contracted  on 
the  credit  of  the  joint  estate,  and  separate  debts  on  that  of  the 
separate  estate.  It  has  the  weight  of  great  authority  and  long 
establishment,  notwithstanding  persistent  objection  and  some 
fluctuation,  and  it  is  based  on  equitable  principles.  Sound  policy 
is  in  its  favor.  Though  there  may  be,  as  there  is  in  the  case  of 
all  such  rules,  instances  in  which  it  works  unsatisfactorily,  yet 
that  on  the  whole,  and  as  a  rule,  it  has  not  operated  unjustly,  is 
evidenced  by  the  fact  that  it  has  existed  so  long  [Ex  parte  Qrowder 
was  decided  in  1715),  notwithstanding  opposition,  and  that  in 
Massachusetts,  at  least,  it  has,  in  the  face  of  the  opposition 
referred  to,  been  established  by  legislative  authority,  and  that,  too, 
as  lately  as  1838.  In  this  state  it  has,  as  has  been  shown,  the 
sanction  of  our  judicial  tribunals,  and  it  is  too  firmly  established 
to  be  disturbed.  It  is  true  that  in  Wisham  v.  lAppincott,  1 
Stock.  353, 356,  the  chancellor  expressed  strong  doubt  of  its  cor- 
rectness, as  a  general  rule  ;  but  in  the  other  cases  before  cited, 
both  previous  and  subsequent,  the  rule  has  been  recognized  with- 
out any  expression  of  disapprobation  or  dissatisfaction. 

There  will  be  a  decree  that  the  joint  assets  be  first  applied  to 
the  payment  of  the  joint  debts,  and  the  separate  assets  to  the 
separate  debts,  and  that  the  joint  creditors  may  participate  in  any 
surplus  of  the  separate  assets  which  may  remain  after  payment 
of  the  separate  debts.  The  costs  of  the  parties  will  be  paid  out 
of  the  funds  represented  by  the  complainant — the  partnership 
estate — and  Andrews's  estate  in  equal  shares. 


6  Stew.]  OCTOBER  TERM,  1880.  77 

Adams  v.  Beideman. 

Israel  B.  Adams 

V. 

Maria  Beideman  et  al. 

A  testator  gave  his  homestead  farm  to  three  of  his  children  equally,  and 
further  gave  legacies  to  his  widow  in  lieu  of  her  dower,  "  secured  on  good  free- 
hold security,  and  the  interest  thereof  paid  half-yearly  to  her ; "  and  also  the 
interest  on  a  legacy  to  a  daughter  for  life.  He  then,  after  the  payment  or  se- 
curing of  the  above-named  legacies,  gave  all  the  residue  of  his  estate,  including 
the  remainders  of  the  legacies,  to  the  three  first-named  children.  One  of  them 
and  a  person  not  of  the  family  were  the  executors.  They  had  never  filed  any 
account.     On  a  bill  for  a  partition  of  the  farm  by  such  executor — Held, 

(1)  That  the  legacies  were  charged  on  the  whole  farm,  and  the  amount  due 
thereon  ought  to  be  ascertained  before  a  sale  was  ordered  on  partition. 

(2)  That  the  complainant,  who,  by  purchase  from  his  brother,  since  testator's 
death,  had  acquired  another  third  of  the  farm,  and  had  occupied  it  since  then, 
could  not  be  called  to  account  by  the  defendant,  for  the  one-third  of  the  pro- 
ceeds of  the  farm  during  his  occupancy,  without  a  cross-bill. 

(3)  That  since  the  amount  of  the  personal  estate,  and  the  extent  of  the  de- 
ficiency thereof  to  satisfy  the  debts  and  legacies,  did  not  appear,  a  sale  would 
not  be  ordered  until  after  the  executors  have  settled  their  account  in  the 
orphans  court. 

Bill  for  partition.     On  final  hearing  on  pleadings  and  proofs. 

Mr.  C.  A.  Bergen,  for  complainant. 

Mr.  T.  J.  Middleton  and  Mr.  T.  B.  Hamedy  for  the  answering 
defendant,  Maria  Beideman. 

The  Chancellor. 

The  bill  prays  a  partition  of  a  farm  in  Camden  county,  of 
which  Isaac  Adams,  father  of  the  complainant,  died  seized  in 
1877,  and  which,  by  his  will,  he  gave  to  his  three  children, 
Israel  B.  Adams,  Maria  Beideman  and  George  W.  Adams.  The 
complainant,  having  bought  George's  share,  is  the  owner  of  two- 
thirds  of  the  property,  and  Maria  of  the  other  third.  By  his 
will,  Isaac  Adams,  after  directing  that  his  debts  be  paid  by  his 


78  CASES  IN  CHANCERY.  [33  Eq. 

Adams  v.  Beideman. 

executors,  gave  to  his  widow  two  promissory  notes  which  he  held 
and  the  sum  of  $500  in  cash,  and  then  ordered  that  the  sum  of 
$1,500  of  his  estate  be  secured  on  good  freeliold  security  and  the 
interest  thereof  paid  half-yearly  to  her;  which  bequests  he  de- 
clared were  in  lieu  of  dower.  He  next  gave  his  daughter,  Rebecca 
Ann  Garwood,  the  interest  of  $500  for  life,  and  then  made  the 
following  disposition  of  the  residue  of  his  estate,  subsequently, 
however,  excepting  therefrom  certain  articles  of  personal  property 
which  he  gave  to  his  widow ; 

"After  the  debts  and  expenses  and  the  above-named  legacies  be  paid  or  se- 
cured to  the  interest  of  the  above-named  legatees,  I  give  and  bequeath  all  the 
residue  and  remainder  of  my  estate,  real,  personal  or  mixed,  including  the  $500 
after  the  death  of  my  daughter  Rebecca  Ann,  and  also  the  $1,500  secured  to 
my  wife,  Jane  Ann,  after  her  death  or  ceasing  to  remain  my  widow,  to  my 
three  children,  Maria  Beideman,  Israel  B.  Adams  and  George  W.  Adams, 
share  and  share  alike,  equal  between  the  three." 

There  can  be  no  question  that  the  legacies  to  the  widow  and 
Rebecca  Ann  are  charged  upon  the  real  estate.  Corwine  v.  Cor- 
wine,  9  C.  E.  Gr.  579.  The  farm  is  not  divisible  among  the 
owners  without  great  prejudice  to  the  interest  of  Mrs.  Beideman 
at  least.  Moreover,  it  is,  as  a  whole,  subject  to  the  lien  of 
the  legacies. 

Mrs.  Beideman  insists  that  the  complainant  is  bound  to 
account  to  her  in  this  suit  for  one-third  of  the  value  of  the 
use  and  occupation  of  the  farm  from  the  time  of  the  testator's 
deathi  She  has  lived  in  part  of  the  house  on  the  property  ever 
since  that  time,  and  he  has  occupied  the  rest  of  it,  and  has,  as  she 
insists,  tilled  the  farm,  assuming  control  over  it  and  excluding 
lier  therefrom,  and  has  taken  the  profits  thereof  to  his  own  use. 
But  in  the  condition  of  the  pleadings  the  complainant  cannot  be 
called  to  account  in  this  suit.  There  is  no  cross-bill,  and  it  may 
be  remarked  that  the  answer  does  not  even  refer  to  the  matter. 
It  merely  "  admits  "  that,  at  the  decease  of  the  testator,  the  com- 
plainant was  in  the  occupation  of  the  farm  (except  the  part  of 
the  house  occupied  by  Mrs.  Beideman)  under  a  lease  from  the 
testator,  and  that  he  still  is  in  possession;  and  it  "charges"  that 
he  is  in  great  arrears  for  rent  for  the  use  and  occupation  of  the 


G  Stew.]  OCTOBER  TERM,  1880.  79 

Adams  v.  Beideman. 

farm.     But  if  the  claim  had  been  set  up  by  the  answer  it  could 
not  be  considered.     A  cross-bill  was  necessary. 

By  the  bill  it  is  alleged  that  the  personal  estate  of  the  testator 
amounts  to  but  little  more  than  enough  to  pay  the  debts,  and  is 
entirely  inadequate  to  pay  the  legacies.  The  answer  denies  the 
truth  of  this  statement,  and  charges  the  complainant  (he  and 
Joel  Horner  were  the  executors  of  the  will)  with  neglect  in  the 
performance  of  his  duty  as  executor  in  not  appraising,  collecting 
and  accounting  for  all  of  the  personal  property,  and  insists  that 
if  the  estate  were  properly  settled,  sufficient  money  could  be  real- 
ized to  pay  the  debts  and  part  of  the  legacies.  It  also  claims 
that  the  complainant  is  himself  a  debtor  of  the  estate,  and  it 
insists  that  the  amount  of  the  deficiency  in  payment  of  the  lega- 
cies, after  applying  thereto  the  personal  estate  applicable,  should 
be  ascertained  before  a  sale  of  the  property  should  be  ordered. 
The  legacies  are  a  charge  on  the  whole  property,  and  the  amount 
of  the  lien  should  be  ascertained  before  the  sale ;  for  the  prop- 
erty would  be  sold  subject  to  it.  Mrs.  Beideman  insists  that  the 
complainant  and  his  co-executor  should  be  called  to  an  account 
here  for  their  delinquency  in  the  settlement  of  the  estate,  and 
that  the  amount  applicable  to  the  payment  of  the  legacies 
should  be  ascertained  in  this  suit.  But  the  pleadings  are  not  apt 
for  that  purpose.  They  have  not  been  called  into  court  to  settle 
tlie  estate.  The  complainant's  bill  prays  for  partition  merely,  and 
Horner  is  a  defendant  thereto  only  as  being  interested  in  the 
raising  and  investing  of  the  legacies  out  of  the  land.  If  Mrs. 
Beideman  desired  to  call  them  to  account  for  the  estate  in  this 
suit,  she  was  bound  to  do  so  by  cross-bill.  It  appears,  however, 
that  they  have  never  filed  their  final  account,  and  they  do  not 
appear  to  have  settled  the  estate.  Obviously,  Mrs.  Beideman 
has  a  right  to  have  it  ascertained  what  amount  of  the  personal 
estate  is  applicable  to  the  legacies  before  a  sale  of  the  land,  and 
the  complainant  is  not  entitled  to  have  a  sale  of  the  land  in  par- 
tition until  the  amount  of  the  lien  shall  have  been  definitely 
fixed.  The  decree  for  sale  will  be  withheld  until  the  executors 
shall  have  settled  their  account  of  the  estate  in  the  orphans 
court  of  Camden  couuty. 


80  CASES  IN  CHANCERY.  [33  Eq. 

Courier  v.  Howell. 

Julia  Couetee 

V. 

Feancis  K.  Howell,  et  al.,  executors. 

A  parent  gave  testamentary  power  to  her  executors  to  sell  a  certain  house 
and  lot,  and  to  set  apart  $3,000  of  tlie  amount  derived  therefrom  for  the  sole  and 
separate  use  of  her  daughter  Julia  [the  wife  of  C],  who  waa  to  receive  the  in- 
terest and  income  thereof  during  her  natural  life,  and  at  her  death  it  was  to  he 
paid  to  the  persons  who  at  that  time  might  be  her  heirs  at  law ;  and  further 
provided  that,  if  Julia  should  so  elect,  the  fund  might  be  invested  in  a  house 
and  lot,  which  she  might  select,  and  which  should  be  conveyed  to  her;  with  a 
further  declaration  that  Julia  should  enjoy  the  same  free  from  the  control  of 
her  husband. 

Testatrix's  house  and  lot  have  been  sold.  Julia's  husband  is  dead,  and  on 
bill  to  compel  the  executors  to  pay  over  to  her  absolutely  the  $3,000 — Held, 
that  since  Julia  could  require  the  executors  to  purchase  a  house  and  convey 
it  to  her,  for  her  sole  and  absolute  use  and  disposition,  she  is  entitled  to  have 
the  $3,000  paid  to  her  directly  and  absolutely. 


Bill  for  relief.     On  bill  and  answer. 
Messrs.  Guild  &  Lum,  for  complainant. 
Mr.  F.  K.  Howell,  for  defendants. 

The  Chancellob. 

Julia  Ann  Sommer,  deceased,  late  of  Newark,  by  her  will, 
dated  April  6th,  1872,  gave  power  to  her  executors  to  sell  her 
house  and  lot  in  Mulberry  street,  in  that  city,  and  provided  that 
when  it  should  have  been  sold,  $3,000  of  the  proceeds  of  the  sale 
should  be  set  apart  for  the  sole  and  separate  use  of  her  daughter 
Julia  (then  the  wife  of  George  W.  Courter,  now  deceased),  who  was 
to  receive  the  interest  and  income  thereof  during  her  natural  life, 
and  at  her  death  it  was  to  be  paid  to  the  persons  who  at  that  time 
might  be  Julia's  heirs  at  law.  And  she  further  provided  that  if 
Julia  should  so  elect,  the  fund  might  be  invested  in  a  house  and 
lot,  which  she  might  select,  in  which  case  the  conveyance  of  the 


6  Stew.]  OCTOBER  TERM,  TSSO.  81 

Courier  v.  Howell. 

house  and  lot  should  be  made  to  her.  And  the  testatrix  declared 
that  it  was  her,  intention  that  Julia  should  enjoy  tlie  same  free 
from  the  control  of  her  husband.  The  testatrix's  house  and  lot  in 
Mulberry  street  have  been  sold,  and  the  $3,000  given  to  Julia 
are  now  in  the  hands  of  the  executors.  By  her  bill  in  this  suit 
she  prays  that  the  fund  may  be  paid  over  to  her.  As  above  in- 
dicated, she  is  now  a  widow.  It  is  obvious  that  she  has  the  right 
to  require  that  the  money  shall  be  invested  in  a  house  and  lot, 
and  that  the  conveyance  be  made  to  her  to  her  own  use.  It  is 
equally  obvious  that  in  such  case  she  could  forthwith  sell  and 
convey  the  property,  and  take  to  her  own  use,  absolutely,  the  pro- 
ceeds of  the  sale.  When  the  interest  or  income  of  a  fund  is  given 
to  one  for  life  with  a  limitation  over,  and  the  gift  is  accompanied 
with  a  power  to  the  donee  of  absolute  disposition  of  the  fund 
during  life,  the  donee  will  be  held  to  be  entitled  to  the  fund  ab- 
solutely, for  he  is  the  equitable  owner  of  it  absolutely.  In  Bar- 
ford  v.  Street,  16  Ves.  135,  where  there  was  a  devise  of  real  and 
personal  estate,  in  trust,  to  pay  the  rents,  dividends  &c.,  to  the 
separate  use  of  a  married  woman  for  life,  and  after  her  decease 
to  convey  as  she  should,  by  deed  or  will,  limit  or  appoint,  with  a 
limitation  over  in  case  of  her  death  in  the  lifetime  of  the  testa- 
trix, or  in  default  of  such  direction,  limitation  or  appointment, 
it  was  held,  notwithstanding  the  codicil  to  the  will  indicated  an 
intention  that  the  estate  should  remain  in  the  hands  of  the  trus- 
tee for  the  devisee's  life,  with  powers  inconsistent  to  a  great 
degree  with  the  supposition  of  her  having  or  being  able  to  ac- 
quire the  absolute  interest,  that  the  gift  was  absolute,  on  the 
ground  that  the  devisee  had,  by  the  will,  full  and  unlimited  power 
to  dispose  of  the  estate  in  her  lifetime,  by  deed  or  will,  and  that 
therefore  the  whole  equitable  fee  was  subject  to  her  disposition. 
In  Irwin  v.  Farrer,  19  Ves.  86,  a  legacy  was  given  to  a  trustee 
on  special  trust  to  invest  it  in  government  securities,  and  pay  the 
dividends  from  time  to  time  to  the  testatrix's  niece,  and  after  her 
death  to  pay  the  principal  to  such  person  as  she  should,  by  will 
or  otherwise,  appoint ;  but  if  she  should  be  desirous  at  any  time 
to  purchase  an  annuity  for  her  life  with  the  legacy,  she  should 
be  at  liberty  to  do  so,  provided  the  annuity  should  be  purchased 

6 


82  CASES  IX  CHANCERY.  [33  Eq. 

Cubberlv  v.  Ciibberly. 

with  the  approbation  of  the  trustees ;  and  it  was  also  provided 
that  she  should  not  have  power  to  sell  the  annuity.  It  was  held 
that  she  had  absolute  powder  of  disposition  over  the  whole  fund, 
and  that  the  demand  by  bill  was  a  sufficient  indication  of  her  in- 
tention to  take  the  whole  for  her  own  benefit,  and  the  execution 
of  a  formal  appointment  was  unnecessary. 

In  the  case  under  consideration,  the  testatrix  undoubtedly  in- 
tended to  secure  to  the  legatee  the  use  of  the  fund  as  against  her 
husband  so  long  as  it  remained  uninvested  in  real  estate,  but 
meant  to  give  her  the  absolute  control  of  it  to  invest  it  at  her 
pleasure  in  real  estate,  to  her  own  use  absolutely.  This  is  mani- 
festly equivalent  to  a  provision  that  she  may  at  will  take  the 
fund  into  her  own  hands  for  her  own  use  absolutely.  She  will 
not  be  compelled,  in  order  to  obtain  the  benefit  of  the  provision, 
to  convert  the  fund  into  real  estate,  and  then  to  sell  that  (perhaps 
ut  a  sacrifice),  but  the  fund  will  be  given  to  her  directly.  There 
will  therefore  be  a  decree  that,  after  deducting  the  costs  of  this 
suit,  which  are  to  be  paid  thereout,  it  be  paid  over  to  her. 


James  D.  Ctjbberly  et  al. 

V. 

Samuel  D.  Cubberly. 


A  testatrix,  after  giving  several  legacies,  gave  the  residue  of  her  estate  to 
her  executor,  to  be  by  him  distributed  to  such  charitable  or  religious  societies 
or  associations  or  corporations,  or  for  such  other  benevolent  purposes,  as  he 
might  see  fit.  Her  next  of  kin  were  an  uncle  D.  and  two  aunts,  Mrs.  G.  ana 
Mrs.  R.  Another  aunt  was  dead,  leaving  children — Samuel,  Alexander  and 
the  complainants — surviving.  The  probate  of  the  will  in  New  York,  wheje 
testatrix  lived,  was  opposed  by  D.  and  others.  Pending  the  contest,  Samuel 
falsely  represented  to  Mrs.  G.  and  Mrs.  R.  that  D.  had  abandoned  his  opposi- 
tion to  the  will,  and  promised  that  if  they  would  make  him  their  attorney  to 
recover  their  interests  in  the  estate,  and  would  divide  equally  with  him  what- 
ever he  should  recover  for  them  as  next  of  kin,  he  would  attend  to  the  litip;a- 
tion,  pay  all  the  costs  and  expenses  himself,  and  divide  the  sum  he  received  from 


6  Stew.]  OCTOBER  TERM,  1880.  83 

Cubberly  v.  Cubberly. 

them  equally  with  his  brothers  and  sister,  the  complainants,  who,  he  stated, 
were  poor  and  needy.  Thereupon  Mrs.  G.  and  Mrs.  K.  gave  him  a  power  of 
attorney  to  act  for  them  in  the  premises.  D.  continued  his  opposition  to  the 
will,  and  the  contest  was  eventually  compromised  by  admitting  the  will  to 
probate,  but  declaring  the  residuary  clause  void.  Mrs.  K.  and  Mrs.  G.  gave 
one-half  of  what  they  received,  as  next  of  kin,  to  Samuel,  who  refused  to  di- 
yide  it  equally  with  complainants. — Held, 

(1)  That  Samuel's  promise  to  Mrs.  K.  and  Mrs.  G.  to  so  divide  with  com- 
plainants was  enforceable  in  equity,  and  that  they  were  entitled  to  an  account 
of  his  expenses  about  the  litigation  and  to  tlieir  several  shares  of  the  amount 
received  by  him  under  the  agreement. 

(2)  That  neither  Mrs.  E.  nor  Mrs.  G.  were  necessary  defendants  or  com- 
plainants, although  they  might  have  been  proper  complainants. 


Bill  for  relief.  On  demurrer  to  bill. 
Mr.  A.  Walling,  jun.,  for  demurrant. 
3Ir.  E.  L.  Oampbell,  for  complainant. 

The  Chancellor. 

According  to  the  bill,  Mary  B.  Danser,  of  New  York,  made 
her  will  in  December,  1876,  whereby,  after  several  devises  and 
bequests,  among  which  were  legacies  to  a  large  number  of  her 
relatives,  including  Mrs.  Mary  Ann  Golder  and  Mrs.  Susan  S. 
Robinson,  she  gave  the  residue  of  her  estate  to  her  executor,  to  . 
be  by  him  distributed  to  such  charitable  or  religious  societies  or 
associations  or  corporations,  or  for  such  other  benevolent  pur- 
poses, as  he  might  see  fit.  She  died  in  February,  1877,  leaving 
the  will  unrevoked,  and  leaving  a  large  estate.  She  had  no 
lineal  descendants,  and  her  next  of  kin  were  an  uncle.  Smith  J. 
Danser,  of  Ohio,  and  two  aunts,  the  above-mentioned  Mrs. 
Golder,  of  New  York  city,  and  Mrs.  Robinson,  who  was  of 
New  Bedford,  Massachusetts.  The  next  of  kin  were,  at  the 
time  of  her  death,  entitled  to  all  that  part  of  her  personal  estate 
which  was  not  disposed  of  by  the  will.  Samuel  D.  Cubberly, 
Alexander  H.  Cubberly  and  the  complainants  were  the  children 
of  the  testatrix's  deceased  aunt,  Mrs.  Lucy  Cubberly,  and  there- 
fore first  cousins  of  the  testatrix.     They  were  the  only  children 


84  CASES  IN  CHANCERY.  [33  Eq. 

Cubberly  v.  Ciibberlv. 

of  Mrs.  Cubberly  who  were  living.  The  will  was  offered  for 
probate,  in  New  York,  in  February,  1877,  and  Danser  and 
others  opposed  its  admission  to  probate.  While  the  proceeding? 
were  still  pending,  and  in  March  of  that  year,  the  defendant 
falsely  represented  to  Mrs.  Colder  and  Mrs.  Avery  (Mrs.  Rob- 
inson's daughter,  and  attorney  as  to  all  her  interest  in  the  estate), 
that  Danser  had  given  up  all  hopes  of  success  in  the  contest,  and 
had  abandoned  it  and  returned  home  to  Ohio ;  and  he  proposed 
that  they  should  give  him  a  power  of  attorney,  authorizing  him 
to  take  such  steps  as  he  might  see  fit,  to  recover  any  interest  of 
theirs  in  the  estate  besides  what  are  called  in  the  bill  specifics 
legacies,  and  to  do  everything  necessary  and  proper  to  that  end, 
and  that  they  should  give  him  one-half  of  the  interest  that  might 
be  recovered  for  them,  he  to  pay  all  fees,  costs  and  expenses  of 
the  measures  which  he  might  employ.  They  refused  to  accept 
the  proposition  at  that  time,  and  it  was  subsequently  (in  April 
following)  renewed  by  him  to  them,  on  the  like  representation  as 
to  the  design  and  conduct  of  Danser.  He,  on  the  latter  occa- 
sion, represented  to  Mrs.  Colder  that  his  reason  for  demanding 
so  large  a  share  as  one-half  for  his  services  was  that  his  brothers 
(except  Alexander  H.  Cubberly,  to  whom  $10,000  were  given  by 
the  will)  and  sister  were  poor  and  needy,  and  his  sister  had  suf- 
fered afflictions;  that  he  did  not  want  the  money  himself,  since 
he  had  $15,000  already,  which  was  for  him  a  competence;  that 
he  was  acting  in  the  interest  of  his  poor  brothers  and  sister,  and 
that  all  that  remained  of  any  share  that  might  €ome  to  him 
after  payment  of  fees,  costs  and  expenses,  he  would  divide 
equally  with  them.  That  proposition,  with  those  representatioas 
and  the  accompanying  promise,  were  frequently  repeated  by  him 
to  Mrs.  Colder  and  Mrs.  Robinson  (in  person)  and  Mrs.  Avery, 
up  to  the  25th  of  May  following ;  and  on  that  day  he  again  had 
an  interview  with  Mrs  Colder  and  Mrs.  Avery,  and  again  re- 
peated the  misrepresentation  before  mentioned,  that  Danser  iiad 
abandoned  the  contest  and  gone  back  to  Ohio.  They  objected  to 
giving  him  so  much  as  one-half,  and  Mrs.  Colder  suggested 
twenty-five  per  cent,  and  Mi's.  Avery  twenty.  The  defendant 
thereupon  spoke  of  his  poor  brothers  and  sister,  and  his  stipula- 


6  Stew.]  OCTOBER  TERM,  1880.  85 

Cubberly  v.  Cubberly. 

tion  to  divide  equally  with  them  any  balance  of  any  share  which 
would  be  coming  to  him  after  the  payment  of  fees,  costs  and  ex- 
penses; and  in  consideration  of  that  stipulation,  and  all  the 
premises,  they  then  acceded  to  his  proposition.  Mrs.  Avery 
only  agreed  to  the  giving  of  so  large  a  share  as  one-half  to  the 
defendant,  after  being  specifically  urged  and  requested  by  Mrs. 
Golder  to  do  so,  in  order  that  the  defendant's  poor  brothers 
and  sister  (who  were  not  named  in  the  will)  might  be  benefited 
tiiereby.  Mrs.  Golder  and  Mrs.  Robinson  soon  afterwards  each 
gave  him  a  letter  of  attorney,  giving  him  full  power,  and 
authorizing  him  to  act  for  them  in  recovering  their  interests 
other  than  what  are  called  in  the  bill  "  specific  legacies ; "  he 
to  have  one-half  of  what  should  be  recovered,  and  they  to  be 
at  no  expense.  In  September,  1877,  in  pursuance  of  a  com- 
promise of  the  litigation  over  the  will,  a  decree  was  made  ad- 
mitting it  to  probate,  but  declaring  the  residuary  clause  void. 
Of  the  residuum  of  the  estate,  Mrs.  Golder  and  Mrs.  Robin- 
son recovered  each  about  $76,000,  and  each  thereupon  paid 
over  one-half  thereof  to  the  defendant,  in  pursuance  of  the 
agreement,  so  that  he  received  the  amount  of  about  $76,000. 

This  suit  is  brought  by  the  persons  before  referred  to  as  the 
poor  brothers  and  sister  of  the  defendant,  for  an  account  of  the 
share  received  by  the  defendant  and  the  amount  paid  out  by 
him,  and  of  the  balance  thereof,  which,  as  they  insist,  is  divisible 
under  the  stipulation,  and  for  the  payment  of  their  portions 
thereof  to  them.  The  defendant  insists  that  the  suit  cannot  be 
maintained,  for  want  of  equity;  and  that  if  it  can  be,  Mrs. 
Golder  and  Mrs.  Robinson  are  necessary  parties  to  it.  He  urges 
that  the  complainants  are  seeking  to  obtain  the  benefit  of  what 
they  insist  was  a  fraud  perpetrated  by  him  on  Mrs.  Golder  and 
Mrs.  Robinson.  But  this  objection  is  not  valid.  The  bill  is  not 
filed  to  set  aside  the  agreement.  None  of  the  parties  to  the 
agreement  complain  of  it.  The  fraud  alleged  to  have  been 
practiced  in  obtaining  the  agreement  is  manifestly  stated  merely 
to  show  that  the  defendant's  conduct  in  tlie  whole  matter — in 
obtaining  the  agreement  as  well  as  in  refusing  to  pay  the 
complainants — was  insincere  and  fraudulent.    The  agreement,  in 


86  CASES  IN  CHANCERY.  [33  Eq. 

Hitchcock  V.  Midland  R.  E.  Co. 

itself,  was  a  lawful  one — one  which  could  have  been  enforced  at 
law  as  well  as  in  equity.  Schomp  v.  Schenck,  11  Vr.  195 ; 
Dickey's  Appeal,  73  Pa.  St.  218.  The  claim  to  relief  depends 
on  the  simple  question  whether  the  stipulation  that  the  defend- 
ant would  divide  equally  with  the  complainants  constituted  part 
of  the  consideration  of  the  agreement.  If  it  did,  then  this  suit 
can  be  maintiiined  upon  the  stipulation.  Besides,  it  is  a  fraud 
on  his  part,  in  such  case,  to  refuse  to  pay  the  complainants. 
According  to  the  bill,  the  agreement  to  give  him  so  large  a  sum 
M'ould  not  have  been  made  but  for  the  stipulation.  Therefore, 
as  to  so  much  of  the  money  as  is  the  equal  share  of  the  com- 
plainants, he  received  it  in  consideration  of  the  stipulation,  and 
he  is  trustee  thereof  for  them. 

Nor  are  Mrs.  Golder  and  Mrs.  Robinson  necessary  parties  to 
this  suit.  They  have  no  interest  in  it  adverse  to  the  com- 
plainants. There  could  be  no  decree  against  them.  They  might 
have  joined  the  complainants  in  the  effort  to  enforce  the  trust 
they  had  created,  but  there  was  no  necessity  for  their  doing  so. 
If  one  person  make  a  promise  to  another,  on  lawful  considera- 
tion, for  the  benefit  of  a  third  person,  such  third  person  may 
maintain  an  action,  even  at  law,  upon  it.  Joslin  v.  Car  Co.,  7 
Vr.  llf^l.  And  if  suit  is  brought  in  equity,  the  promisee  is  not 
a  necessary  party  to  it.     Fruden  v.  Williams,  11  C.  E.  Gr.  210 

The  demurrer  will  be  overruled,  with  costs. 


Anna  L.  Hitchcocz 


V. 

The  Midland  Raileoad  Company  of  New  Jersey  et  al. 

Bv  the  direction  of  a  committee  selected  to  represent  and  protect  the  bond- 
holders of  a  railroad  corporation,  in  the  sale  of  the  property  and  re-organization 
of  the  company,  a  circular  was  issued  requesting  each  bondholder  willing  to 
come  in,  to  deposit  his  bond  with  a  designated  trust  institution  in  New  York, 
together  with  the  amount  of  a  specified  assessment  to  defray  the  expenses  of 
the  proceedings,  and  to  obtain  therefor  the  receipt  of  such  trust  institution, 
countersigned  by  the  representative  of  the  committee  to  be  thereafter  desig- 


6  STET7.]  OCTOBER  TERM,  1880.  87 

Hitchcock  V.  Midland  R.  E.  Co. 

nated.  The  circular  further  stated  where  the  oiSce  of  the  committee  was  in 
New  York,  and  was  signed  by  the  members  of  the  committee,  including  How- 
ard P.  Dechert,  "  secretary,"  and  required  such  deposit  to  be  made  on  or  before 
December  Slst,  1879.  The  complainant  was  the  holder  of  a  bond  for  $1,000, 
which  she  took  to  the  trust  company  for  deposit,  together  with  the  amount  of 
her  assessment,  on  January  13th,  1879.  The  trust  company  refused  to  receive 
it,  and  referred  her  to  the  committee,  whereupon  she  took  it  to  the  designated 
office  of  the  committee,  where  Mr.  Dechert  received  it  and  her  assessment, 
giving  her  a  receipt  of  the  committee  therefor.  Three  days  afterwards,  Mr. 
Dechert,  as  secretary,  deposited  with  the  trust  company  this  bond  and  four 
others,  taking  therefor  a  certificate  in  his  individual  name.  The  sale  was  con- 
summated, the  company  re-organized,  and  are  about  to  issue  new  bonds  in  lieu 
of  the  old  ones,  but  refuse  to  acknowledge  the  validity  of  complainant's  receipt 
or  her  claim  to  either  her  old  bond  or  a  new  one,  on  the  ground  that  she  did 
not  deposit  the  bond  with  the  trust  company. — JECeld,  that  she  is  entitled  to 
relief,  and  it  is  no  objection  that  the  present  holder  of  complainant's  bond 
is  not  made  a  party,  because,  for  aught  that  appears,  either  the  committee  or 
its  agent,  the  trust  company,  holds  it ;  or  if  the  secretary  of  the  committee 
haa  misappropriated  it,  such  act  does  not  prejudice  complainant;  nor  does  it 
appear  that  any  one  having  an  interest  has  been  omitted,  nor  that  complain- 
ant failed  in  a  strict  compliance  with  the  instructions  of  the  committee's  cir- 
cular, as  to  deposit  with  the  trust  company,  because  the  committee  waived 
such  requirements  by  accepting  the  bond  and  assessment. 


Bill  for  relief.     On  general  demurrer. 

M7\  J.  W.  Taylor,  for  demurrants. 

Mr.  Q.  E.  Brown  and  Mr.  C.  J.  G.  Hall  (of  New  York),  for 
complainant. 

The  Chancellor. 

According  to  the  bill,  the  property  of  the  New  Jersey  Midland 
Railway  Company  was  under  foreclosure.  Previous  to  or  pend- 
ing the  proceedings,  a  plan  of  re-organization  of  the  company,  by 
or  in  the  interest  of  such  of  the  bondholders  as  should  agree  to 
it  and  contribute  to  the  expense  of  carrying  it  out,  was  adopted, 
and,  by  circular,  bondholders  were  invited  to  come  in  and  par- 
ticipate in  the  benefits  of  the  arrangement.  A  committee,  called 
the  "  re-organization  committee,"  was  appointed.  Among  those 
who  constituted  it  was  Howard  P.  Dechert,  and  he  was  its  sec- 


88  CASES  IX  CHANCERY.  [33  Eq. 

Hitchcock  V.  Midland  R.  E.  Co. 

retary.  By  the  circular  before  mentioned  (a  copy  of  which  was 
received  by  the  complainant),  those  who  were  interested  in  the 
matter  were  informed  that  all  first  mortgage  bondholders,  de- 
sirous of  participating  in  the  purchase  of  the  road  at  the  foreclos- 
ure sale,  were  to  deposit  their  bonds  with  the  Central  Trust 
Company,  in  the  city  of  New  York,  on  or  before  the  31st  of 
December  then  next,  together  with  one-quarter  of  one  per  cent. 
on  the  amount  of  such  bonds,  in  cash,  for  defraying  the  costs  of 
foreclosure  and  expenses  incident  thereto,  taking  the  receipt  of 
that  company  therefor,  countersigned  by  the  representative  of  the 
permanent  committee,  to  be  thereafter  appointed  to  perfect  the 
organization  in  such  form  as  they  should  determine;  and  that 
the  holders  of  the  second  mortgage  bonds,  who  should  desire  to 
avail  themselves  of  the  provisions  of  the  plan,  were  to  deposit 
their  bonds  and  pay  a  like  percentage  thereon,  on  or  before  the 
same  date,  taking  a  like  receipt  therefor  from  the  trust  company, 
countersigned  as  before  mentioned ;  and  that  any  balance  over 
such  costs  and  expenses  of  foreclosure  would  be  applied  in  set- 
tling with  those  first  mortgage  bondholders  who  should  not  join 
in  the  purchase  of  the  road,  and  the  remainder,  if  any,  was  to  be 
paid  into  the  treasury  of  the  new  company.  The  circular  was 
accompanied  by  a  notice,  which  formed  part  of  it,  that  in  accord- 
ance with  the  plan,  a  committee  of  trustees,  the  names  of  the 
members  of  which  were  given,  had  been  constituted,  and  that  the 
office  of  the  committee  was  at  a  designated  place  in  the  city  of 
New  York.  Among  the  names  was  that  of  Mr.  Dechert,  to 
whose  name  the  addition  of  "secretary"  was  made. 

The  complainant,  on  the  13th  of  January,  1879,  was  the  owner 
of  one  of  the  first  mortgage  bonds,  and  on  that  day  she  offered 
it  to  the  Central  Trust  Company,  for  the  purpose  of  depositing  it 
with  that  company,  under  and  in  pursuance  of  the  before-men- 
tioned plan  of  re-organization,  but  the  trust  company  refused  to 
receive  it,  and  referred  her  to  the  re-organization  committee.  On 
that  day  she  offered  the  bond  to  the  committee,  and  it  was  received 
by  them  through  Mr.  Dechert,  their  secretary,  pursuant  to  the 
plan  of  re-organization,  and  to  enable  her  to  participate  therein. 


6  Stew.]  OCTOBER  TER:\r,  1880.  89 

Hitchcock  V.  Midland  E.  E.  Co. 

At  the  same  time,  she  paid  to  the  secretary  her  assessment,  and 
took  the  receipt  of  the  committee.     The  receipt  was  as  follows  : 

"  Ke-organization  Committee  of  the  New  Jersey  Midland  Kailway  Co. 
"  Deposit  of  First  Mortgage  Bonds.     Name,  Mrs.  J.  G.  Hitchcock. 
"Address,  Longmeadow,  Mass. 
"  One  bond  of  |1,000  each,  Nos.  235.     Coupons  commencing  Feb'y  1,  1874. 

"Amount  of  bonds $1,000  00 

"Assessment 2  50 

"Date  of  deposit,  Jan.  13,  '79. 

"  Eec'd  the  above, 

"  H.  P.  Decheet, 

"  Sec'y." 

Three  days  afterwards,  Mr.  Dechert,  as  secretary  of  the  com- 
mittee, deposited  the  bond  with  the  trust  company,  together  with 
other  bonds  amounting  to  $4,000,  and  took  from  the  trust  com- 
pany a  certificate  for  the  five  bonds  in  his  own  name,  indi- 
vidually. 

The  property  of  the  railroad  company  was  sold  under  the  fore- 
closure, and  was  bought  in  by  or  in  behalf  of  the  re-organization 
committee,  in  pursuance  of  the  before-mentioned  plan,  and  a  new 
company  was  formed  according  to  the  statute.  The  committee 
approved  a  plan  for  the  settlement  or  compromise  of  the  debts, 
claims  or  liabilities  of  the  old  company,  but  on  what  terms  they 
refuse  to  tell  the  complainant.  They  have  now  ceased  to  act. 
The  new  company  is  about  to  issue  its  bonds  in  place  of  those  of 
the  original  company,  which  were  deposited  with  the  committee 
under  the  plan,  and  as  authorized  by  the  provisions  of  the  act 
"  respecting  railroads  sold  under  mortgage"  [Rev.  p.  5^),  and  to 
deliver  them  to  the  persons  holding  and  presenting  the  certifi- 
cates of  deposit  of  the  trust  company,  under  the  plan,  and  it  re- 
fuses to  recognize  the  receipt  given  to  the  complainant,  or  to 
deliver  her  any  bond  therefor,  unless  it  is  accompanied  by  the 
certificate  of  the  trust  company.  Neither  Dechert  nor  the  com- 
mittee has  ever  returned  her  bond  to  her  or  given  her  any  cer- 
tificate of  deposit  of  the  trust  company  therefor  or  anything  repre- 
senting it,  nor  have  they  or  any  of  them  given  to  her  any  other 
bond,  certificate  or  receipt  whatever.     She  is  still  the  owner  of 


90  CASES  IN  CHANCERY.  [33  Eq. 

Hitchcock  V.  Midland  K.  R.  Co. 

the  bond.  She  has  in  vain  demanded  of  the  committee  the  return 
of  her  bond  or  the  delivery  to  her  of  the  certificate  of  the  trust 
company  acknowledging  the  deposit  of  it,  and  she  has,  but  in 
vain,  demanded  from  the  new  company  a  bond  of  $1,000  in 
place  of  her  bond,  according  to  the  plan  of  re-organization.  The 
bill  is  filed  against  the  new  company  and  the  members  of  the 
committee,  and  it  prays  that  the  complainant  may  be  decreed  to 
be  the  owner  of  the  bond,  and  to  be  the  person  to  whom  any  bond 
under  the  plan  of  re-orgauization  is  to  be  given  instead  thereof ; 
and  that  the  new  company  may  be  decreed  to  issue  a  bond  to  her 
instead  of  the  bond  delivered  to  the  committee,  or  that  the  de- 
fendants may  be  decreed  to  account  to  her  for  the  proceeds  or 
fair  value  of  her  bond,  and  to  pay  it  or  them  to  her  accordingly, 
out  of  the  funds  in  their  hands  arising  from  assessments  on  the 
bonds ;  and  that  the  new  company  may  be  enjoined  from  issuing 
any  bond  to  any  one  but  the  complainant,  instead  of  her  bond; 
and  it  prays  for  relief  generally. 

The  defendants  demur.  For  causes,  they  assign  want  of  equity, 
want  of  a  necessary  party  (the  present  holder  of  the  complain- 
ant's bond),  and  that  the  complainant  has  an  adequate  remedy  at 
law.  They  insist  that  the  complainant  does  not  show  herself  en- 
titled to  the  relief  she  seeks  because  she  does  not  show  that  she 
complied  with  the  provisions  of  the  plan  of  re-organization.  It 
is  necessary,  they  insist,  that  she  should  show  that  she  deposited 
her  bond  with  and  paid  her  assessment  to  the  trust  company. 
For  some  reason  which  does  not  appear,  the  trust  company,  as 
before  mentioned,  declined  to  receive  them,  and  referred  her  to 
the  committee,  its  principal  (for  the  trust  company  was  merely 
the  agent  or  depositary  of  the  committee),  and  she  went  to  the 
committee  and  delivered  the  bond,  with  her  assessment  thereon, 
to  them.  This  was  a  compliance  "with  the  direction  of  the  plan  ; 
and  in  receiving  the  bond  and  assessment  themselves,  the  com- 
mittee waived  the  provision  for  deposit  with  the  trust  company. 
Nay,  after  they  received  the  bond  and  assessment  they  deposited 
the  former  with  the  trust  company  themselves,  and  if  their  officer 
(and  he  was  not  only  their  officer,  but  one  of  their  number), 
fraudulently  took  a  certificate  from  the  trust  company  in  his  own 


6  Stew.]  OCTOBER  TERM,  1880.  91 

Hitchcock  V.  Midland  E.  R.  Co. 

favor,  when  he  ought  to  have  taken  it  in  favor  of  the  complain- 
ant, that  fact  cannot  prejudice  her.  For  aught  that  appears,  the 
committee  still  hold  her  bond.  The  act  of  Dechert,  their  secre- 
tary, in  receiving  the  bond  and  assessment,  and  depositing  the 
former,  was  the  act  of  the  committee.  As  before  stated,  the  trust 
company  was  the  mere  depositary  of  tlie  committee.  According  to 
the  circular,  its  receipt  was  not  sufficient  to  entitle  the  bondholder 
to  participate  in  the  benefits  of  the  re-organization  unless  it  was 
countersigned  by  the  representative  of  the  committee.  The  pro- 
vision for  depositing  the  bonds  and  assessments  with  the  trust 
company  manifestly  was  for  convenience  and  security  merely. 
The  object  in  requiring  the  counter-signature  was  that  the  com- 
mittee might  know  and  keep  an  account  of  the  deposits.  The 
committee  themselves  had  the  power  to  receive  bonds  and  assess- 
ments if  they  saw  fit  to  do  so.  And  where  the  depositary  de- 
clined, from  some  scruple  or  reason,  to  receive  a  bond,  and  re- 
ferred the  bondholder  to  the  committee,  as  its  principal,  the 
delivery  of  the  bond  to  the  committee  was  clearly  entirely  legiti- 
mate. If  the  bond  had  been  subsequently,  and  before  it  was 
deposited  with  the  trust  company  by  the  committee,  lost,  no 
question  would  have  arisen  as  to  the  right  of  the  complainant  to 
the  benefit  of  her  bond  in  the  re-organization  of  the  railroad  com- 
pany. But  it  is  because  their  secretary  has  been  guilty  of  a 
fraudulent  appropriation  to  his  own  use  of  her  bond  that  the 
question  is  raised.  That  fraudulent  conduct  was  in  the  course 
of  his  business  as  agent  of  the  committee,  and  the  complainant 
can  no  more  be  prejudiced  by  it  than  one  who  deposits  a  check 
in  a  bank  for  collection,  for  his  account,  would  by  the  fraud  of 
the  bank  messenger  in  embezzling  the  proceeds  of  the  check 
after  receiving  them  from  the  drawee.  Nor  do  I  perceive  any 
reason  whatever  why  the  complainant,  on  the  statements  of  the 
bill,  should  not  participate  in  the  benefits  of  the  plan  of  re-or- 
ganization. It  does  not  appear  that  there  is  any  adverse  claim. 
It  does  not  appear  that  her  bond  has  been  assigned  by  Dechert, 
or  that  the  certificate  which  he  received  from  the  trust  company 
is  not  in  the  possession  of  the  committee  or  the  new  company. 
Nor  is  the  bill  demurrable  for  want  of  parties ;  for,  as  has  just 


92  CASES  IX  CHANCERY.  [33  Eq. 

Ilendee  v.  Howe. 

been  remarked,  it  does  not  appear  that  any  other  party  than  those 
who  are  now  defendants  has  any  interest  in  the  controversy. 
Obviously,  tlie  complainant  has  not  an  adequate  remedy  at  law. 
The  demurrer  will  be  overruled. 


John  Hendee 

V. 

Carrie  R.  Howe  et  al. 


A  judgment  creditor  of  a  mortgagor,  who  had  been  made  a  party  defendant 
to  a  bill  to  foreclose  a  mortgage  (a  prior  lien  on  the  premises),  before  answer- 
ing, and  with  intent  to  redeem  the  mortgage,  tendered  the  complainant  the 
amount  due  thereon,  together  with  the  accrued  interest  and  taxed  costs,  which 
he,  without  objecting  to  the  amount  of  costs,  refused  to  accept. — Held,  that  his 
conduct  was  obstructive  and  yexatious,  and  that  he  must  pay  the  costs  of  a 
cross-suit  to  redeem,  although  it  appeared  that  the  costs  of  notice  to  an  absent 
defendant  in  the  foreclosure  suit  were  unknown  to  the  clerk,  and  had  not  been 
taxed  or  tendered.  The  judgment  creditor,  however,  was  decreed  to  pay  those 
costs. 


Bill  to  foreclose  first  mortgage.  Cross-bill  of  judgment  cred- 
itor of  mortgagor  to  redeem.  On  final  hearing  on  pleadings  and 
proofs. 

Mr.  L.  Newcomb,  for  complainant  in  original  suit. 

Mr.  S.  M.  Dickinson,  for  complainant  in  cross-suit. 

The  Chancellor. 

The  original  suit  was  brought  to  foreclose  a  mortgage  on  land 
in  Cumberland  county,  given  by  William  H.  Swift  to  John 
Hendee,  the  complainant  in  that  suit,  dated  June  13th,  1877, 
and  made  to  secure  the  payment  of  $800  in  one  year,  with  inter- 
est payable  semi-annually.  The  cross-bill  was  filed  by  Carrie 
R.    Howe   to    redeem    the    mortgage.      She    is    a   judgment 


6  Steav.]  OCTOBER  TERM,  1880.  93 

Hendee  v.  Howe. 

creditor  of  the  mortgagor.  Her  judgment  was  recovered 
in  the  Cumberland  circuit  court  in  October,  1877,  for  $1,654, 
debt  and  costs.  The  bill  in  the  original  suit  was  filed 
December  19th,  1879.  The  judgment  creditor  answered  Jan- 
uary 20th,  1880.  On  the  16th  of  that  month  she,  with  a  view 
to  redeeming  the  mortgage,  tendered  to  Mr.  Hendee  the  full 
amount  of  principal  of  the  mortgage,  and  the  interest  thereon, 
and  the  costs  of  the  suit  as  taxed.  The  tender  was  refused. 
Hendee  says  it  was  accompanied  with  the  condition  that  he  should 
execute  an  assignment  of  the  mortgage  to  Miss  Howe,  but  I  am 
satisfied,  from  the  proof,  that  what  was  demanded  was  merely 
a  receipt  or  acknowledgment  of  the  payment  and  the  delivery 
of  the  bond  and  mortgage.  Hendee  alleges  that  he  was  not  told 
that  the  tender  was  in  behalf  of  Miss  Howe,  but  the  weight  of 
evidence  is  to  the  contrary,  and  it  is  clear  that  he  and  his  soli- 
citor knew  that  it  was  made  for  her.  There  is  no  proof  that 
there  was  anything  more  due  for  costs  than  was  tendered.  When 
the  tender  was  made  there  was  no  objection  to  the  amount  of 
costs.  It  was  not  alleged  that  costs  had  been  inxjurred  which 
were  not  known  in  the  clerk's  office — cost  of  notice  to  an  absent 
defendant — and  that  therefore  the  costs  taxed  by  the  clerk  were  not 
the  full  amount  of  the  costs  of  the  suit  up  to  that  time.  The 
cross-bill  states  that  the  full  amount  of  principal,  interest  and 
costs  as  taxed  was  tendered.  The  answer  to  that  bill  merely  de- 
nies this,  and  alleges  that  there  was  more  money  due  at  the 
time  for  principal,  iuterest  and  costs  than  was  tendered.  No 
objection  whatever  was  made,  at  the  time  of  the  tender,  to  the 
amount  tendered.  The  answer  is  silent  as  to  the  refusal  to  accept 
the  tender.  It  is  apparent  that  the  conduct  of  Hendee  was 
obstructive  and  vexatious.  Miss  Howe  had  a  right  to  redeem. 
Her  judgment  is  admitted  by  the  answer  to  the  cross-bill.  Hen- 
dee, by  his  refusal  to  permit  her  to  redeem,  has  unnecessarily 
and  vexatiously  put  her  to  the  expense  of  the  cross-suit,  and  he 
should  pay  the  costs  of  it.  On  the  filing  of  the  cross-bill  the 
amount  tendered  was  paid  into  court.  Miss  Howe  will  be 
permitted  to  redeem,  on  paying  such  taxable  costs  incurred 
in   the   original   suit   as   were   not    included    in    the    bill   of 


94  CASES  IN  CHANCERY.  [33  Eq. 

Belden  v.  Belden. 

costs  as  taxed.     Hendee  is  of  course  entitled  to  the  money  paid 
into  court. 


Oliver  S.  Belden 

V. 

Annie  W.  Belden. 


A  wife,  with  her  child,  left  her  husband,  in  1873,  owing  to  his  utter  inabil- 
ity to  maintain  them,  and  after  he  had  pledged  a  mortgage  belonging  to  her, 
and  constituting  nearly  all  of  her  separate  property,  to  secure  his  own  debt, 
and  pawned  her  jewelry  and  silver  plate.  Soon  after  she  left,  she,  by  the  ad- 
vice of  lier  relations,  declined  to  return  to  him  until  she  could  be  satisfied  of 
his  ability  to  support  her.  He  apparently  acquiesced  in  her  living  separate 
from  him  till  1878.  In  1879  she  absolutely  refused  to  return  to  him. — Hdd, 
that  her  conduct,  prior  to  1879,  if  desertion  at  all,  was  not  obstinate,  Avithin  the 
meaning  of  the  statute. 


Petition  for  divorce.  On  final  hearing  on  pleadings  and  proofs. 
Mr.  John  T.  WoodhvM  and  Mr.  F.  C.  Lowthorp,  for  petitioner. 
Mr.  P.  L.  Voorhees,  for  defendant. 

The  Chancellor. 

This  suit  is  brought  for  a  divorce  from  the  bond  of  marriage, 
on  the  ground  of  desertion.  The  parties,  who  both  then  resided 
here,  were  married  in  Philadelphia,  December  16th,  1868.  They 
immediately  thereafter  went  to  Salem,  in  this  state,  to  reside,  and 
lived  there  together  until  March  25th,  1873,  when  the  defend- 
ant, with  her  infant  child,  left  that  place,  with  her  husband's 
consent,  and  went  to  Kingston,  wiiere  she  has  ever  since  resided. 
The  petitioner,  Dr.  Belden,  alleges  that  his  wife  deserted  him  in 
April,  1873.  The  petition  was  filed  January  5th,  1880.  She, 
in  her  answer,  denies  the  desertion,  and  says  that  she  was  con- 
strained to  leave  him,  by  his  cruel  treatment  of  her.     The  facts 


6  Stew.]  OCTOBER  TERM,  1880.  95 

Belden  v.  Belden. 

appear  to  be,  that  they  lived  together  in  Salem  until  March, 
1873,  when,  in  consequence  of  the  petitioner's  pecuniary  embar- 
rassments, she  went  to  Kingston,  with  his  consent,  to  stay  for  a 
short  time,  and,  apparently,  until  he  could  make  new  arrange- 
ments for  the  support  of  his  family.  She  expected  to  return  to 
him,  but  he  did  not  provide  the  means  for  her  to  do  so.  Some 
correspondence  passed  between  them  soon  after  she  left.  It  ap- 
pears to  have  ceased  in  May,  1873.  About  the  middle  of  that 
month  she  sent  her  brothers,  Henry  L.  R.  Van  Dyck  and  Dr. 
Van  Dyck,  and  Captain  Garwood,  to  Salem,  for  her  furniture, 
and  it  was  delivered  up  to  them  by  the  defendant.  He  had  sold 
her  carpet,  however,  before  they  came.  Soon  after  this  time 
thei'e  were  one  or  two  interviews  between  the  petitioner  and  the 
defendant,  in  one  of  which,  at  the  house  of  her  brother.  Dr. 
Van  Dyck,  in  Philadelphia  (in  the  summer  of  1873),  he  re- 
quested her  to  return  to  him,  and  she  replied  that  she  had  decided 
not  to  do  so  until  he  knew  how  he  was  going  to  take  care  of  her. 
The  next  time  he  saw  her  was  at  Princeton  Junction,  in  the  sum- 
mer of  1874,  and  she  says  he  then  tried,  unsuccessfully,  to  bor- 
row $100  of  her ;  but  he  denies  it.  She  swears  that  he  did  not 
then  ask  her  to  return  to  him,  and  he  does  not  say  that  he  did. 
No  communication  of  any  kind  passed  between  them,  after  that 
time,  until  the  summer  of  1878,  when  he  wrote  to  her,  soliciting 
her  to  return.  He  had  an  interview  with  her  in  the  summer  of 
1879,  and  she  then  virtually  refused  to  return  to  him.  She  gave 
him  the  impression,  he  says,  that  she  would  return  when  she 
could  see  her  way  clear  to  do  so.  In  that  same  summer,  in  an 
interview  with  her  brother,  H.  L.  R.  Van  Dyck,  she  declared,  in 
substance,  that  she  could  not  return  to  her  husband.  When  she 
left  the  petitioner,  in  March,  1873,  it  was,  as  before  stated,  be- 
cause of  his  financial  troubles.  He  was  then  in  a  great  strait, 
pecuniarily,  beyond  all  question.  He  had  pawned  her  watch 
and  chain,  and  the  jewelry  which  he  had  given  her ;  also  her 
wedding  gifts  of  silver,  and  most  of  her  other  silver  plate.  She 
had,  when  she  was  married,  a  separate  estate,  in  money  or  securities, 
to  the  amount  of  above  $6,000.  Of  that  estate  he  had  induced 
her  to  assign  a  bond  and  mortgage  for  $4,300  as  collateral  secu- 


96  CASES  IN  CHANCERY.  [33  Eq. 

Belden  v.  Belden. 

rity  for  a  debt  of  his,  arid  she  had  given  into  his  hands,  at  his 
request,  all  the  rest  of  her  property,  except  that  bond  and 
mortgage,  and  he  had  spent  it.  Her  brother,  Dr.  Van 
Dyek,  redeemed  her  watch  and  jewelry,  and  part  of  the  silver, 
for  her,  and  obtained  an  assignment  to  himself  in  her  behalf  of 
the  bond  and  mortgage,  by  paying  the  debt  (it  amounted  to 
about  §800),  as  security  for  which  they  were  assigned.  The  pe- 
titioner refused  to  consent  to  the  assignment  to  Dr.  Van  Dyck, 
unless  he  was  absolutely  discharged  from  all  liability  to  his 
wife  for  the  debt.  The  defendant  alleges  that  she  suffered  for 
the  want  of  the  necessaries  of  life  towards  the  latter  part  of  her 
stay  in  Salem,  and  that  appears  to  be  the  cruelty  charged  in  her 
answer.  If  she  did,  it  was  undoubtedly  due  to  the  petitioner's 
poverty.  That  he  was  poor,  then  and  subsequently,  there  seems 
to  be  no  room  to  doubt.  It  is  unnecessary  to  refer  to  the  evi- 
dence on  that  subject.  That  it  was  difficult  for  him  to  get  a 
living  for  himself  and  family  seems  to  be  equally  clear.  His 
poverty,  however,  was  not  a  ground  for  the  abandonment  of  him 
by  the  defendant,  and  it  appears  that  she  never  entertained  the 
intention  to  remain  away  from  him  until  her  brother,  Dr.  Van 
Dyck,  moved  by  his  interest  in  her  welfare,  and  in  view  of  the 
petitioner's  embarrassments  and  poverty,  advised  her  not  to  return 
to  him  until  she  had  evidence  that  she  would  be  properly  main- 
tained. Dr.  Van  Dyck  testifies  that  after  she  left  Salem  he 
found  her  looking  very  ill,  and  that  she  appeared  to  be  in  great 
trouble ;  that  he  discovered,  on  a  visit  to  Kingston,  that  the  pe- 
titioner had  been  there,  and  seemed  to  be  in  a  great  deal  of 
trouble  also,  and  had  borrowed  money  of  his  (Dr.  Van  Dyck's) 
brother  ;  that  he  (Dr.  Van  Dyck)  insisted  on  the  defendant's 
giving  him  a  statement  of  her  affairs  and  condition  at  home, 
which  she  did  ;  that  she  told  him  her  property  was  in  pawn,  and 
her  furniture  held  for  debt,  and  that  she  had  no  money  with 
which  to  pay  the  expenses  of  her  return  to  Salem,  and  he  says 
he  then  told  her  she  must  remain  away  from  Salem  until  her 
friends  had  evidence  that  she  would  be  cared  for.  When,  in  the 
summer  of  1873,  the  petitioner  asked  her  to  return  to  him,  and 
she  replied  that  she  had  decided  not  to  do  so,  until  he  knew 


6  Stew.]  OCTOBER  TERM,  1880.  97 

Belden  v.  Belden. 

how  he  was  going  to  take  care  of  lier,  she  undoubtedly  acted  on 
the  advice  just  mentioned.  From  that  time  the  petitioner  had 
no  communication  with  her,  except  in  the  interview  at  Princeton 
Junction,  until  he  wrote  to  her  in  September,  1878.  In  a  letter 
dated  on  the  second  of  that  month,  after  speaking  on  the  subject 
of  his  proposed  removal  of  the  remains  of  their  deceased  child 
from  the  Salem  burying-ground  to  the  cemetery  at  Princeton,  he 
says:  "Another  object  in  writing  to  you  is  to  ascertain  if  you 
would  be  M'illing  to  accept  or  make  any  reasonable  proposition 
by  which  the  unnatural  status  of  our  relations  could  in  any  re- 
spect be  relieved.  I  deem  it  my  duty,  as  a  professing  Christian, 
to  make  a  special  effort  to  relieve  it,  if  possible."  He  concludes 
the  letter  with  a  prayer  that  she  may  be  guided  to  receive  the 
communication  in  the  right  spirit.  From  the  summer  of  1873 
to  the  fall  of  1878,  he  does  not  appear  to  have  solicited  her  to 
return  to  him.  Her  furniture  was  under  levy  for  his  debt  in 
1875,  and  at  his  request  she  went  to  Salem  to  release  it,  but  she 
left  again  on  the  same  day.  She  says  that  he  did  not  then  invite 
her  to  stay,  and  though  he  says  his  "recollection  is"  that 
he  did,  he  does  not  say  so  positively,  and,  indeed,  he  does  not,  in 
his  testimony,  reckon  that  among  the  occasions  on  which  he  asked 
her  to  return  to  him.  Nor  did  he  contribute  to  her  support,  or 
that  of  her  child,  during  that  period  of  more  than  five  years. 
She  has  but  little  property,  and  is,  and  before  her  marriage  was, 
disabled  to  a  great  extent,  by  permanent  stiffness  of  her  left  arm 
(the  result  of  disease),  from  doing  any  work  to  obtain  the  means 
of  livelihood,  except  light  sewing.  She  has  lived,  since  her  sep- 
aration from  her  husband,  in  a  part  of  her  late  father's  home- 
stead, which  part  was  secured  to  her  by  his  will,  in  view  of  her 
crippled  condition,  for  a  refuge,  in  case  of  necessity.  Up  to 
1879  she  never  refused  to  return  to  the  petitioner,  but  was  appar- 
ently willing  to  do  so,  if  it  appeared  he  could  support  lier.  In 
that  year  she  appears  to  have  refused  to  return.  He  then  offered, 
if  she  would  return,  to  place  $500  in  the  hands  of  his  lawyer,  as 
security  that  he  would  support  her,  and  to  agree  to  pay  over  to 
the  lawyer  $100  a  month  thereafter,  for  the  support  of  the  fam- 

7 


98  CASES  IN  CHANCERY.  [33  Eq. 

Belden  v.  Belden. 

ily,  and  house-rent;  the  money  to  be  drawn  by  her  in  sums  not 
to  exceed  $25  a  week.  She,  nevertheless,  declined  to  return,  and 
gives  as  her  reason  that  she  did  not  know  that  the  petitioner 
could  carry  out  his  proposition.  It  is  needless  to  say  that  a  wife 
cannot  deal  thus  with  her  husband  and  not  render  herself  liable 
to  the  charge  of  deserting  him.  But  the  conduct  of  the  peti- 
tioner, from  the  time  when  the  defendant  left  him  up  to  the  letter 
of  September  2d,  1878,  was  such  as  to  lead  to  the  conclusion  that 
he  acquiesced  in  the  separation  during  that  time.  It  is  true  he 
says  he  asked  her  to  return  in  the  summer  of  1874,  but  she  de- 
nies it,  and  I  see  no  reason  to  give  greater  credit  to  him  than  to 
her  on  this  point.  Neither  of  them  is  corroborated.  A  divorce 
will  not  be  granted  on  the  testiraouy  of  the  applicant  alone.  He 
does  not  appear  to  have  sought  to  induce  her  to  return  to  him 
from  the  summer  of  1873  to  the  fall  of  1878,  but,  on  the  other 
hand,  left  her  to  struggle  along,  and  with  great  dijEficulty,  for  the 
support  of  herself  and  her  child,  without  aid  of  any  kind, 
or  even  any  communication  from  him.  He  did  not  discharge 
his  duty  towards  her  in  the  premises.  If  her  separation  from 
him  could  be  regarded  as  willful  desertion  from  the  time  when, 
in  1873,  she  is  proved  to  have  declined  to  return,  it  is  clear  that 
during  the  period  that  intervened  up  to  September,  1878,  be  did 
not,  in  the  language  of  the  court  in  Cornish  v.  Cornish,  8  C.  E. 
Gr.  £08,  make  the  advances  or  concessions  which  a  just  man 
ought  to  have  made  to  put  an  end  to  the  desertion.  His  finan- 
cial embarrassment  in  the  spring  of  1873  was  manifestly  very 
great,  and  distressing  to  both  him  and  her,  and  his  conduct  to- 
wards her  in  respect  to  her  property  was  very  aggravating,  as 
well  as  mortifying.  He  appeared,  indeed,  to  be  unable  to  pro- 
vide for  her,  and  yet,  after  she  left  him,  she  was  willing  to  return, 
and  but  for  family  advice,  which  was  honestly  and  sincerely  given, 
and  intended  for  her  benefit,  would  undoubtedly  have  done  so. 
Nor  had  she  any  evidence  whatever,  even  by  his  bare  declaration, 
from  the  summer  of  1873  to  the  fall  of  1878,  that  he  was  in 
anywise  able  to  contribute  anything  to  her  support,  or  that  of 
their  child.  When  she  declined  to  return,  in  1873,  he  obtained 
from  her  four  out  of  five  dollars  she  had  borrowed  for  her  own 


6  Stew.]  OCTOBER  TEEM,  1880.  99 

Joyce  V.  Haines. 

use,  to  buy  him  a  pair  of  shoes.  Her  letters  to  him — while  in 
the  latest  ones  she  expresses  distrust  of  his  ability  to  support  her 
— are  not  unaffectionate.  Those  written  in  1873,  judging  from 
their  language,  are  the  letters  of  a  loving  and  faithful  wife.  No 
intention  to  desert  her  husband  appeared  in  her  language  or 
conduct  up  to  1879.  And  if  she  could  be  held  to  have  deserted 
her  husband  in  1873,  as  I  think  she  could  not — for  though  there 
was  cessation  of  cohabitation,  there  was  no  intention  to  desert — 
her  desertion  could  not  be  said  to  have  been  obstinate. 
The  petition  will  be  dismissed,  with  costs. 


Amanda  S.  Joyce 

V. 

Anna  M.  Haines  et  al. 

A  bill  to  establish  a  resulting  trust  averred  merely  that  C.  (the  husband) 
was  married  to  K.  in  1827,  and  that  lands  were  conveyed  to  him  in  1831,  but 
that  the  consideration  therefor  was  paid  by  the  wife  "out  of  her  own  estate," — 
Held,  insufficient.  The  court  cannot  infer,  from  such  averment,  that  the  wife 
had  a  separate  estate,  and  that  the  consideration  for  such  land  was  paid  there- 
from, or  for  its  benefit.  As  the  law  stood  at  her  marriage,  her  property, 
other  than  her  separate  estate,  vested  in  her  husband,  and  even  if  the  money 
was  her  separate  estate,  she  might  have  given  it  to  her  husband. 


Bill  for  relief.     On  general  demurrer. 
Mr,  C.  E.  HendricJcson,  for  demurrant. 
Mr.  W.  A.  Barrows,  for  complainant. 

The  Chancellor. 

The  bill  states  that  Caleb  A.  L.  Shinn  and  Rebecca,  his  wife, 
were  married  in  1827,  and  that  in  1831,  Joseph  Kirkbride, 
assignee  of  Abraham  Hays,  conveyed  to  Shinn  certain  real  estate 


100  CASES  IN  CHANCERY.  [33  Eq. 


Jovce  t'.  Haines. 


iu  Vincentown,  in  Burlington  county ;   that  the  consideration, 
§1,092,  named  in  the  deed  and  actually  paid,  was  paid  by  Mrs. 
Shinn  "out  of  her  own  estate,"  although  the  title  to  the  prop- 
erty was  conveyed  to  Shinn,  and  that  no  part  of  it  was  paid  by 
him ;  that  afterwards,  in  1844,  Shinn  and  his  wife  conveyed  the 
])remises,  with  other  property,  to  his  niotlier  in  law,  Ann  Lodge, 
hy  voluntary  conveyance,  and  merely  to  shift  the  title  to  elude 
his  creditors,  and  she,  in  1854,  conveyed  the  pro])erty  back  to 
him,  without  consideration,  except  the  agreement  for  re-convey- 
ance made  between  her  and  him,  made  on  the  conveyance  to  her ; 
that  part  of  the  property  was  conveyed  away  by  Shinn  and  his 
wife;  that  she  died  intestate,  in  1874,  leaving  him  and  her  two 
daughters,  the  complainant  and  Anna  M.  Haines,  surviving  her ; 
that  they  were  her  only  heirs  at  law;  that  Shinn  died  in  1880, 
leaving  a  will,  which  has  been  proved,  by  which  he  gave  all  his 
lands  in  Vincentown  to  his  daughter,  Mrs.  Haines ;  that  the 
latter  claims  to  be  the  owner  in  fee  of  so  much  of  the  property 
conveyed  by  Kirkbride,  assignee  to  Shinn,  as  before  mentioned, 
as  the  latter  was  seized  of  at  his  death,  and  that  she,  with  her 
husband,  has  mortgaged  it,  with  other  land,  to  Sarah  A.  Tom- 
liuson.     It  "charges  and  insists"  that  on  the  death  of  Mrs. 
Shinn  intestate,  her  equitable  estate  and  interest  existing  in  the 
property  by  reason   of  her   having   paid    the   purchase-money 
therefor,  descended  to  and  vested  in  Mrs.  Haines  and  the  com- 
plainant, as  tenants  in  common,  subject  to  Shinn's  tenancy  by 
the  curtesy,  and  that  he  had  no  further  or  other  estate  in  the 
property  except  as  trustee  for  them.     It  denies  that  Mrs.  Haines 
has  any  title  as  devisee,  but  alleges  that  she  has  only  title  to  an 
equal  undivided  half,  as  one  of  the  heu's  at  law  of  her  mother, 
while  it  insists  that  the  complainant  is,  in  like  manner,  entitled 
to  the  other  half.     It  prays  a  discovery  merely,  with  general 
relief.     The  bill  is  founded  on  the  theory  that  a  resulting  trust 
in  favor  of  Mrs.  Shinn,  in  the  property,  arose  from  the  fact  that 
the  consideration  of  the  conveyance  from  Kirkbride,  assignee  to 
her  husband,  was  paid  by  her  out  of  her  own  funds.    The  aver- 
ment is  that  it  was  paid  by  her  "  out  of  her  own  estate ;"  not 
that  it  was  paid  out  of  her  separate  estate.     The  pleader  may 


6  Stew.]  OCTOBER  TERM,  1880.  101 

Joyce  V.  Haines. 

have  intended  to  aver  that  she  had  a  separate  estate,  and  that 
the  consideration  was  paid  out  of  it  for  her  own  benefit,  or  that 
of  her  separate  estate,  but  he  lias  not  done  so.  If  the  money- 
had  been  part  of  her  separate  estate,  and  she  had  given  it  to  her 
husband  as  a  gift,  to  enable  him  to  pay  the  consideration  money 
of  the  conveyance,  no  trust  would  have  resulted  to  her.  If  the 
money  was  not  her  separate  estate,  under  the  law  as  it  stood  at 
the  time  of  her  marriage,  it  became  the  property  of  her  husband, 
and,  of  course,  no  trust  resulted  from  his  use  of  it  in  paying  the 
consideration  money  of  the  conveyance  of  land  to  him.  The 
bili  "charges  and  insists"  that  a  trust  resulted  to  Mrs.  Shinn 
by  reason  of  her  payment  of  the  purchase  money  merely,  and 
that  on  her  death,  her  husband  had,  beside  his  curtesy,  no  estate 
in  the  property  except  as  trustee  for  the  complainant  and  her 
sister,  Mrs.  Haines,  but  there  is  no  averment  that  the  property 
%yas  bought  for  Mrs.  Shinn,  or  was  to  be  held  in  trust  for  her,  or 
that  she  was  to  be  the  owner  of  it,  notwithstanding  the  title  was 
taken  by  her  husband.  The  claim  to  relief  is  wholly  based  on 
the  allegation  that  the  consideration  money  was  paid  by  her  out 
of  her  own  estate,  without  even  denying  that  it  was  paid  on 
account  and  for  the  benefit  of  her  husband.  It  is  too  much  to 
intend,  from  the  simple  averment  that  the  money  was  paid  out 
of  her  own  estate,  that  she  not  only  liad  a  separate  estate,  but 
that  the  money  was  paid  out  of  it,  and  for  her  own  separate 
benefit,  in  the  purchase  of  the  property.  It  would  seem,  from 
the  statements  of  the  bill,  that  the  idea  of  the  complainant  is 
that  the  mere  payment  by  a  married  woman,  before  the  passage 
of  our  married  women's  act,  of  the  purchase  money  of  land 
conveyed  to  her  husband,  out  of  money  which  was  hers  at  her 
marriage,  or  became  hers  afterwards,  though  not  settled  to  her 
separate  use,  of  itself  created  a  resulting  trust  in  the  land,  in 
her  favor,  and  made  her  husband  trustee  thereof  for  her,  though 
the  land  was  bought  by  him  and  for  his  own  use.  It  is  unneces- 
sary to  say  that  that  proposition  cannot  be  maintained.  If 
the  bill  is  based  on  the  fact  that  Mrs.  Shinn  had  a  separate 
estate,  out  of  which  and  for  the  benefit  whereof  the  payment 


102  CASES  IN  CHANCERY.  [33  Eq. 

Perrine  v.  Vreeland. 

was  made,  to  the  end  that  she  should  be  the  beneficial  owner  of 
the  property,  to  her  separate  use,  the  averments  are  insufficient. 
The  demurrer  will  be  sustained. 


Maky  M.  Perrine,  administratrix  &c., 


Peter  Yreeland,  executor  &c. 

A  testator  gave  the  interest  on  certain  funds,  which  were  to  be  securely  in- 
vested on  bond  and  mortgage,  to  his  wife  for  life  or  widowhood,  for  the  sup- 
port of  herself  and  their  son,  with  a  proviso  that  on  her  remarriage,  her 
right  to  such  interest  should  cease,  and  it  should  be  payable  for  the  support  of 
the  son  only ;  and  if  she  should  remain  unmarried  until  the  son  attained  his 
majority,  he  should  be  entitled  to  one-half  of  the  income  for  his  own  use ; 
and  that  at  her  decease  all  the  estate  should  go  to  the  son  absolutely,  so  soon 
as  he  should  marry  or  become  of  age,  but  if  he  should  die  without  heirs,  or 
before  he  came  into  full  possession,  then  over.  The  widow  and  two  others 
were  appointed  executors.  The  testator  died  in  1840,  and  his  widow,  who, 
with  one  of  the  other  appointees,  proved  the  will,  remarried  in  1847.  In  1848, 
the  executors  who  proved  the  will  filed  their  final  account,  and  invested  the 
fund  as  directed  by  the  will,  until  its  repayment  to  the  executor  in  1873, 
when  it  was  invested  in  first  mortgage  on  city  lots,  then  worth  three  times  as 
much  as  the  fund  invested.  Afterwards,  the  mortgagor  became  insolvent,  and 
the  executor,  on  foreclosure,  was  obliged  to  buy  in  the  property,  in  order  to 
protect,  the  fund.  The  son  came  of  age  in  1860.  He  was  married  to  com- 
plainant in  1858,  and  died  in  1864,  leaving  a  child  born  of  the  complainant 
in  18G0,  who  is  stUl  living. — Held, 

(1)  On  construction  of  the  will,  that  the  son  was  entitled  to  the  entire  estate 
on  the  remarriage  of  the  widow,  and  the  gift  over  was  defeated  by  the  sou's 
leaving  lawful  issue  surviving  at  his  death. — Held,  also, 

(2)  That  the  executor's  discretion  as  to  the  security  of  the  investment  in 
1873  appearing  to  have  been  fairly  exercised,  and  he  having  obtained  advice 
from  reputable  counsel  that  the  principal  of  the  fund  did  not  go  to  the  sou 
unless  he  survived  his  mother,  he  is  guilty  of  no  breach  of  trust,  either  be- 
cause he  continued  to  hold  the  fund  after  the  gift  over  was  defeated,  or  because 
of  the  investment  in  1873,  and  that  the  land  is  the  fund. 


Bill  for  relief.     On  final  hearing  on  pleadings  and  proofs. 


6  Stew.]  OCTOBER  TERM,  1880.  103 

Perrine  v.  Vreeland. 
Mr.  S.  B.  Ransom,  for  complainant. 
Mr.  C  H.  Hartshorne,  for  defendant. 

The  Chancellor. 

Cornelius  W.  Yreeland,  now  deceased,  by  his  will,  dated  Janu- 
ary 6th,  1840,  after  ordering  payment  of  his  debts  and  giving  a 
specific  legacy  to  his  wife,  directed  that  a  certain  lot  of  land 
which  he  then  owned  should  be  sold,  and  the  proceeds  used  as 
thereinafter  provided.     He  then  proceeded  as  follows  : 

"  It  is  my  will  that  the  money  raised  by  the  sale  of  the  aforesaid  lot  be  put 
out  at  interest,  secured  by  bond  and  mortgage,  and  to  remain  so,  together  with 
all  my  money  that  I  now  have  standing  upon  bond  and  mortgage,  or  that  may 
be  due  me  at  my  decease,  until  such  time  as  liereinafter  specified.  It  is  my 
will  that  the  interest  or  income  of  all  my  money  or  estate  be  paid  to  my  be- 
loved wife  Caroline  yearly  and  every  year  during  her  natural  life,  provided 
she  remains  my  widow,  for  her  to  have  and  to  use  the  same  for  her  own  sup- 
port and  the  education  and  support  of  my  son  William.  But  in  case  she 
should  marry,  then  it  is  my  will  that  her  right  and  title  to  said  interest  or  in- 
come should  cease  with  the  date  thereof;  and  in  this  case,  my  executors  are  to 
keep,  hold  and  use  the  interest  or  income  of  all  my  estate  for  the  sole  benefit, 
education  and  support  of  my  son  William.  And,  further,  it  is  my  will  that 
my  beloved  wife  Caroline,  in  case  her  life  should  be  spared,  and  she  remain 
my  widow  until  my  son  William  should  marry  or  become  of  age,  tliat  she 
should  pay,  or  cause  to  be  paid,  to  my  son  William  the  one-half  of  the  income 
of  all  my  estate,  provided  he  should  exact  the  same,  for  him  to  have  and  use 
the  same  as  he  may  think  proper. 

"At  the  decease  of  my  beloved  wife  Caroline,  I  give  and  bequeath  to  my  son 
William  all  my  estate,  together  with  all  the  proceeds  or  profits,  so  soon  as  he 
shall  marry  or  become  of  age,  for  him  to  have  and  to  hold  the  same  for  him- 
self, his  heirs  or  assigns,  forever.  In  case  my  son  William  should  die  without 
heirs,  or  before  he  comes  into  the  full  possession  of  my  estate,  then  and  in  that 
case  I  give  and  bequeath  to  my  surviving  brothers  and  sisters  all  my  estate,  to 
be  equally  divided  between  them,  share  and  share  alike,  for  them  to  have  and 
to  hold  the  same  for  themselves,  their  heirs  and  assigns,  forever." 

He  appointed  his  wife  and  his  brother,  Peter  V.  B.  Vreeland, 
Peter  Vreeland,  the  defendant,  and  Jasper  Cadmus,  jun.,  his 
executors.  He  died  in  February,  1840.  The  will  was  proved 
by  Mrs.  Vreeland  and  Peter  V.  B.  Vreeland.  In  1848  (the 
widow  had  then  remarried),  they  filed  their  final  account  of  the 


104  CASES  IN  CHANCERY.  [33  Eq. 

Perrine  v.  Vreeland. 

estate,  which  was  allowed  and  passed  September  20th,  1848 ;  by 
which  they  admitted  that  the  amount  of  the  net  balance  of  the 
estate  in  their  hands  was  §2,944.77.  The  testator's  widow  mar- 
ried Henry  M.  Burch,  May  2d,  1847.  Mr.  Burch  died  August 
27tii,  1858,  and  she  married  her  present  husband,  John  Shilli- 
day,  November  2d,  1864.  The  testator's  son  William  came  of 
age  in  1860.  He  was  married  to  the  complainant  August  2d, 
1858.  He  died  May  24th,  1864.  He  had  a  child,  a  daughter, 
by  the  complainant,  born  March  14th,  1860,  who  is  still  living. 
His  widow  took  out  letters  of  administration  on  his  estate  on  June 
16th,  1864,  and  letters  of  guardianship  of  her  daughter  on  July 
18th,  1865.  She  married  her  present  husband  in  1866.  She 
brings  this  suit  to  recover  from  the  executor  and  executrix  the 
estate  given  by  the  will  to  her  husband,  the  testator's  son  Wil- 
liam. 

The  estate  appears  to  have  been  securely  invested  by  Peter 
V.  B.  Vreeland  previously  to  October  14th,  1873 ;  and  it  having 
been  paid  to  him,  he  then  invested  it  on  bond  and  mortgage  of 
nineteen  vacant  building-lots,  of  the  usual  size  of  twenty-five 
feet  front  by  one  hundred  feet  in  depth,  in  the  city  of  Bayonne, 
in  Hudson  county.  They  were  worth  §500  apiece.  The  inter- 
est being  in  arrears,  he  began  proceedings  in  this  court  for  fore- 
closure of  that  mortgage  and  sale  of  the  mortgaged  premises,  in 
1876,  and  obtained  a  decree,  March  14th,  1878,  for  $3,470.05, 
including  costs.  At  the  sheriff's  sale,  the  property  was  bid  up  by 
another  person  against  his  bids  to  nearly  $3,000,  at  which  price 
it  was  struck  off  to  him,  as  executor,  and  a  deed  from  the  sheriff 
was  taken  by  him,  accordingly,  for  it,  under  which  he  still  holds 
it.  The  mortgagor  is  insolvent.  The  interest  on  the  investment 
appears  to  have  been  collected  and  paid  over,  up  to  October  14th, 
1875.  The  property  is,  as  before  stated,  still  in  the  hands  of  the 
executor,  and  it  cannot  now,  for  want  of  a  market  for  it,  be  sold 
for  enough  to  pay  the  principal  and  interest  of  the  investment 
up  to  this  time,  besides  taxes,  but  if  turned  into  cash  now,  there 
would  be  a  loss.  The  complainant  insists  that  she  is  entitled  to 
an  account  from  the  executors  of  the  fund,  with  interest  from 
October  14th,  1875,  and  that  they  are  bound  to  pay  it  over  to 


6  Stew.]  OCTOBER  TERM,  1880.  105 

Perrine  v.  Vreeland. 

her  in  cash.  On  the  other  hand,  the  executor  Vreeland,  who 
alone  has  had  charge  of  the  estate  since  the  settlement  of  the 
final  account,  answers  that  lie  has  been  and  is  advised,  and  now 
insists,  that  the  principal  of  the  fund  is  not  payable,  by  the 
terms  and  true  construction  of  the  will,  until  the  death  of  the 
testator's  widow;  and,  further,  that  if  the  complainant  is  now 
entitled  to  the  principal,  he  is  not  bound  to  account  in  cash,  but 
only  for  and  in  the  property.  He  appears  not  only  to  have  been 
careful  in  investing  the  fund,  but  also  to  have  taken  pains  to 
ascertain  when  it  was  payable.  He  took  the  advice  of  two 
practicing  lawyers  of  this  state  on  the  subject,  obtaining  a  writ- 
ten opinion  from  one  of  them,  at  least,  and  was  advised  by  both 
that  the  principal  of  the  fund  was  not  payable  until  the  death  of 
the  testator's  widow ;  and  he  acted  upon  the  advice.  It  appears, 
also,  that  no  demand  was  made  upon  him  for  the  payment  of  the 
principal  of  the  fund  until  just  before  this  suit  was  brought. 

By  the  will,  the  interest  of  the  fund  is  given  to  the  widow 
for  life,  provided  she  remains  the  testator's  widow,  for  her  own 
support  and  the  support  and  education  of  the  testator's  son 
William ;  and  it  is  expressly  provided  that  on  her  remarriage, 
her  right  and  title  to  the  interest  shall  cease,  and  that  thereafter 
the  executors  shall  hold  the  estate  for  the  sole  benefit,  education 
and  support  of  William  ;  and,  further,  that  if  the  widow  should 
live  and  remain  unmarried  till  the  majority  or  marriage  of 
William,  she  should  then  pay  him  half  of  the  income,  for  his 
own  use  absolutely,  if  he  should  demand  it.  The  will  then  pro- 
ceeds as  follows : 

"At  the  decease  of  my  beloved  wife  Caroline,  I  give  and  bequeath  to  my 
8on  William  all  my  estate,  together  with  all  its  proceeds  or  profits,  so  soon  as 
he  sliall  marry  or  become  of  age;  for  him  to  have  and  to  hold  the  same  for 
himself,  his  heirs  or  assigns,  forever.  In  case  my  son  William  should  die 
without  heirs,  or  before  he  comes  into  the  full  possession  of  my  estate,  then 
and  in  that  case,  I  give  and  bequeath  to  my  surviving  brothers  and  sisters  all 
my  estate,  to  be  equally  divided  between  them  &c." 

The  testator  evidently  intended  to  give  the  entire  estate  to 
William  on  the  decease  or  remarriage  of  his  widow.  He  ex- 
pressly provides   that   on  her  remarriage,  her  interest   in  the 


106  CASES  IN  CHANCERY.  [33  Eq. 

Perrine  v.  Vreeland. 

income  (which  was  her  entire  interest  in  the  estate)  should  cease, 
and  the  executors  should  therefore  keep,  hold  and  use  the  inter- 
est or  income  of  all  the  estate  for  the  sole  benefit,  education  and 
support  of  William ;  and  though  the  bequest  of  the  estate  to 
William  is,  by  the  language  of  the  will,  on  the  death  of  the 
widow,  and  not  on  her  remarriage,  he  manifestly  intended  to 
give  it  to  William  on  the  happening  of  the  latter  event.  He 
contemplated  the  possibility  of  the  death  of  his  widow  before 
William  should  have  attained  to  his  majority  or  have  been 
married,  and  therefore  provided  that  so  soon  after  her  death  as 
he  should  become  of  age  or  marry,  he  should  have  the  whole 
estate  absolutely.  The  gift  over  is,  according  to  its  terms,  in  the 
event  of  his  dying  without  heirs  (meaning  children*),  or  before  he 
should  come  into  the  full  possession  of  the  estate.  The  testator's 
intention  svas  that  the  estate  should  go  over  in  case  William  died 
without  issue,  and  (substituting  the  word  "  and  "  for  the  word 
"  or,"  to  effectuate  the  testator's  intention),  before  having  come 
into,  or  become  entitled  to,  the  full  possession  of  the  estate. 
The  widow's  interest  in  the  estate  ceased  on  her  marriage  to  Mr. 
Burch,  in  1847 ;  and  thereafter,  until  William's  majority,  the 
executors  were  to  hold  the  estate  in  trust  for  him  for  his  sole 
use.  He  had  a  child  born  in  1860,  in  which  year  he  attained 
his  majority.  He  died  in  1864.  The  child  is  still  living.  The 
fact  that  William  left  a  child  living  at  his  death  put  an  end  to 
tlie  limitation  over ;  it  could  never  take  effect.  From  the  date 
of  his  mother's  remarriage,  the  executor  w^as,  by  the  will,  to 
hold  the  estate  for  William's  use,  without  limitation  ;  and  such 
gift  of  the  use  was  equivalent  to  a  gift  of  the  entire  estate.  It 
appears  by  the  context,  too,  that  in  fixing  the  time  when  the 
estate  was  to  go  to  William,  at  the  death  of  his  widow,  the  testator 
was  contemplating  the  contingency  of  her  dying  while  his  widow, 
and  giving  directions  accordingly;  and  there  is,  therefore,  nothing 
in  that  provision,  when  properly  construed  (as  there  is  not  when 
all  the  provisions  are  considered  together),  to  prevent  or  militate 
against  the  vesting  of  the  estate  in  William  on  his  mother's  re- 
marriage. The  estate,  therefore,  was  vested  absolutely  in  him  at 
his  death ;  and  at  his  death  it  was  payable  to  his  legal  represent- 


6  Stew.]  OCTOBER  TERM,  1880.  107 

Perrine  v.  Vreeland. 

ative.     His  administratrix  was  therefore  entitled  to  it,  as  she 
still  is. 

It  remains  to  consider  the  further  question  as  to  the  account 
and  payment.  The  executor  has  retained  the  estate  in  his 
hands  until  this  time,  under  a  misapprehension  as  to  his  duty 
under  the  will.  He  took  pains  to  inform  himself  as  to  his  duty, 
as  before  stated.  He  consulted  not  only  one,  but  two,  experienced 
lawyers,  obtaining,  as  before  mentioned,  the  written  opinion  of 
at  least  one  of  them  on  the  subject.  Their  view  of  the  subject, 
and  his  consequent  action  upon  it,  was  acquiesced  in  by  the  ad- 
ministratrix. It  is  true  she  was  without  any  information  as  to 
her  rights  in  the  matter,  except  such  as  she  derived  from  his 
counsel  and  himself;  but  the  information  given  to  her  by  them 
was  honestly  and  fairly  given,  and  was  the  result  of  careful  in- 
quiry and  examination.  She  herself  might  have  got  the  advice 
of  counsel,  and  she  was  at  liberty  to  obtain  an  adjudication  on 
the  subject.  The  executor  cannot  be  regarded  as  having  been 
guilty  of  a  breach  of  his  trust  in  declining  to  pay  over  the  fund 
to  her,  under  the  circumstances.  His  trust  with  regard  to  the 
fund  still  continued,  and  he  was  bound  to  take  the  same  care  of 
it  as  before  the  administratrix  was  entitled  to  demand  it.  Under 
the  circumstances,  his  duty  in  regard  to  it  was  not  changed,  and 
his  liability  was  not  increased,  by  the  fact  that  he  held  it  and 
declined  to  pay  it  over  to  her  after  she  became  entitled  to  it. 
He  managed  it  with  care  and  made  proper  investments,  and 
paid  over  the  interest  so  long  as  interest  was  collectible  on  the 
investment.  When,  in  1873,  he  invested  it  on  the  lots  in  Bay- 
onne,  he  appears  to  have  been  guilty  of  no  negligence.  Though  the 
lots  were  vacant,  yet  they  were  in  a  growing  city,  aud  were  worth  at 
the  time  at  least  $500  apiece.  There  were  nineteen  of  them,  and 
they  were  then  worth  $9,500 — more  than  three  times  the  amount 
of  the  fund.  The  want  of  a  market  for  the  property  is  due  to  the 
great  revulsion  which  has  taken  place  since  the  investment  was 
made.  At  sheriflf's  sale,  under  the  foreclosure  proceedings,  the 
property  was  bid  up  to  nearly  $3,000  by  another  person,  and  the 
executor,  for  the  protection  of  the  fund,  deemed  it  prudent  to 
buy  it  in.     His  action  in  that  matter  does  not  appear  to  have 


108  CASES  IN  CHANCERY.  [33  Eq. 

Fine  r.  King. 

been  such  as  to  render  him  liable  to  the  charge  of  breach  of 
trust.  He  is  bound  to  account  for  the  fund,  but  is  not  bound  to 
pay  it  over  in  cash.  He  may  pay  it  over  in  the  property  itself. 
He  will  be  ordered  to  pay  it  over  in  the  property,  which  he  will 
be  required  to  convey  to  the  complainant,  as  administratrix,  on 
receiving  payment  from  her  of  what  may  be  due  to  him  for  costs 
and  fees  paid  in  the  foreclosure  proceedings  and  on  the  sheriff's 
sale,  and  taxes,  if  any,  paid  by  him,  and  his  commissions,  and 
his  costs  of  this  suit.  Or,  the  trust  may  be  closed  by  the  sale  of 
the  property  under  the  direction  of  this  court,  and  the  proceeds, 
after  deducting  the  before-mentioned  payments  to  the  trustee, 
paid  over  to  the  complainant. 


George  Fixe 


Joseph  B.  King  et  al. 

Lands  of  an  insolvent  decedent  were  sold,  free  of  Ms  widow's  dower,  to  pay 
his  debts.  To  secure  such  dower,  the  purchaser  gave  the  administrators  a 
mortgage  for  $2,700,  the  interest  whereof  was  payable  to  the  widow  for  life, 
and  the  principal,  at  her  death,  to  her  husband's  heirs  at  law.  The  purchaser 
also  gave  another  mortgage  on  the  premises,  prior  to  the  widow's,  which  was 
afterwards  paid  off.  The  widow's  dower  was,  in  fact,  only  $1,700,  and  the  pur- 
chaser afterwards  borrowed  $2,600  of  the  complainant.  By  an  agreement  with 
the  administrators,  without  the  privity  or  consent  of  the  widow,  the  complain- 
ant's mortgage  was  to  be  the  first  lien  on  the  premises — the  administrators 
agreeing  with  the  lender  to  indemnify  him  against  the  widow's  claim  to  pri- 
ority ;  and  tliis  agreement  was  consummated  by  canceling  the  widow's  mort- 
gage, and  substituting  another  for  $1,700,  in  lieu  of  it,  subsequent  to  complain- 
ant's.— Held,  in  a  suit  for  foreclosure  of  the  lender's  mortgage,  that  the  riglits 
and  priority  of  the  widow  were  unaffected  thereby,  but  that  relief  could  be 
obtained  by  her,  in  the  suit,  only  by  cross-bill. 


Bill  to  foreclose.     On  final  hearing  on  pleadings  and  proo6. 
Mr.  J.  G.  Shipman,  for  complainant. 
Mr.  0.  Jeffery,  for  Mary  Riuehart. 


6  Stew.]  OCTOBER  TERM,  1880.  109 

Fiae  v.  King. 

The  Chancellor. 

The  admiuistrators  of  George  Riuehart,  deceased,  under  an 
order  of  the  orphans  court  of  Warren  county,  sold  his  real 
estate  to  pay  his  debts.  It  was  sold  free  of  the  dower  of  his 
widow,  Mary  Riuehart.  The  property  was  sold  to  Joseph  B. 
King,  who,  in  order  to  raise  part  of  the  purchase  money,  gave  a 
mortgage  thereon  to  William  Kiley,  for  $3,600,  and  for  the  rest, 
gave  a  mortgage  for  $2,709.75,  to  the  administrators.  By  the 
terms  of  this  latter  mortgage,  the  interest  was  to  be  payable  to 
Mary  Rinehart,  the  dowress,  for  life,  and  at  her  death,  the  prin- 
cipal was  to  go  to  her  husband's  heirs  at  law.  By  an  agreement 
between  the  administrators  and  Kiley,  his  mortgage  had  pric^rity 
over  the  mortgage  given  to  them.  The  Kiley  mortgage  was 
paid  off  and  canceled  in  December,  1876.  The  widow  was  not 
entitled,  for  her  dower,  to  interest  on  the  whole  amount  of  the 
mortgage  to  the  administrators,  but  only  on  $1,773.  In  order 
to  pay  the  difference  to  the  administrators.  King  borrowed  $2,600 
of  tiie  complainant,  on  a  mortgage  to  be  given  him  on  the  prop- 
erty, but  the  complainant  would  not  lend  the  money  on  the 
security  unless  it  should  be  made  the  first  encumbrance  on  the 
property.  It  was  thereupon  agreed  between  him  and  the  admin- 
istrators that  his  mortgage  should  have  precedence  over  the 
mortgage  to  secure  the  dower.  The  arrangement  was  carried 
out  by  the  cancellation  of  the  mortgage  for  $2,709.75,  and  the 
substitution  of  a  new  one  for  $1,773,  in  its  place,  subsequent  to 
that  of  the  complainant.  The  widow  knew  nothing  of  this 
arrangement,  and  the  cancellation  and  substitution  were  made 
without  her  knowledge  or  consent.  In  this  suit,  which  is  for 
foreclosure  of  the  complainant's  mortgage,  she,  by  her  answer, 
sets  up,  on  this  ground,  her  claim  to  priority.  It  is  clear,  from 
the  evidence,  that  the  complainant  knew  when  the  arrangement 
by  which  he  obtained  priority  for  his  mortgage  was  made,  that 
the  mortgage  held  by  the  administrators  was  held  in  trust  to 
secure  the  widow's  dower,  and  he  knew  that  the  cesiuis  que  trust 
had  not  consented  to  the  arrangement.  He  not  only  admits  it, 
but  it  appears,  by  his  testimony,  that  the  administrators  agreed 
with  him  that  they  would  personally  indemnify  their  cestuis  que 


110  CASES  IN  CHANCERY.  [33  Eq. 

Fine  V.  King. 

trust  agaiust  any  loss  which  the  latter  might  sustain  by  reason 
of  the  loss  of  priority.  The  property  will  not  bring  euongli  to 
pay  both  mortgages  in  full,  and  a  loss  therefore  will,  in  the 
existing  order  of  priority,  be  sustained  by  the  beneficiaries,  under 
the  mortgage  to  the  administrators.  Such  of  them  as  did  not 
consent  to  the  arrangement  are  entitled,  in  equity,  to  a  re-instate- 
meut,  to  the  extent  of  tiieir  interest  therein,  of  the  original  mort- 
gage to  the  administrators,  thus  improperly  canceled.  The 
widow  alone  makes  defence.  She,  however,  cannot  obtain  relief 
in  the  present  state  of  tlie  pleadings.  She  can  only  have  it  by 
cross-bill,  for,  in  order  to  obtain  her  rights,  she  needs  affirma- 
tive relief  against  the  complainant. 

The  testimony  taken  on  the  motion  to  admit  the  widow  to 
answer  after  default,  was,  by  consent  of  counsel,  used  on  the 
hearing  as  evidence  in  the  cause.  A  consent  to  that  effect  should 
be  filed.  The  answer,  which  is  put  in  without  oath,  in  accord- 
ance with  the  requirement  of  the  bill,  is  defective  in  its  state- 
ment as  to  the  widow's  ignorance  of  and  non-consent  to  the  can- 
cellation and  substitution.  The  defect  is  manifestly  due  to  mere 
inadvertence  of  the  pleader.  The  answer  may  be  amended  in 
that  respect.  When  leave  was  given  to  the  widow  to  answer 
after  the  default,  leave  was  also  given  to  file  a  cross-bill,  if  so 
advised.  None  was  filed,  and,  on  the  hearing,  it  was  understood 
that  one  might  be  filed,  if  deemed  necessary  by  the  court,  to 
give  the  widow  the  relief  she  claimed.  She  will  therefore  have 
leave  to  file  a  cross-bill,  and  the  cause  will  stand  over  for  further 
hearing,  after  the  issue  shall  have  been  joined,  and  the  testi- 
mony closed — if  any  further  testimony  shall  be  taken — in  the 
cross-suit. 


6  Stew.]  OCTOBER  TERM,  1880.  Ill 

Crosland  v.  Hall, 

Sabah  Crosland 

V. 

Reujien  p.  Hall  and  wife,  et  al. 

A  willful  misrepresentation  as  to  the  income  derived  from  the  royalty  on  a 
certain  patent,  which  induced  a  landowner  to  exchange  his  property  for  a  one- 
half  interest  in  such  royalty,  is  sufficient  evidence  of  fraud  and  deceit  to  set 
aside  the  conveyance. 

Bill  for  relief.     On  final  hearing  on  pleadings  and  proofs. 
Mr.  J,  S,  Mitchdly  for  complainant. 
Mr.  D.  J.  Paneoast,  for  defendant. 

The  Chancellor. 

On  the  24th  of  December,  1877,  the  complainant,  Sarah  Cros- 
land, held  the  legal  title  to  a  tract  of  land  of  about  eighteen  acres, 
in  Landis  township,  in  the  county  of  Cumberland,  and,  accord- 
ing to  the  bill  of  complaint,  was  the  owner  thereof.  The  prop- 
erty was  improved.  There  was  on  it  a  dwelling-house,  besides 
other  buildings  and  improvements.  It  appears  to  have  been 
worth  about  $5,500.  She  also  owned  certain  personal  property 
on  the  premises,  consisting  of  household  furniture  in  the  house. 

Note. — Analogous  cases  may  be  found,  where  actions  at  law  have  been  main- 
tained for  deceit  as  to  the  rent  received  from  premises  {Ekins  v.  Tresham,  1 
Lev.  102 ;  Lymey  v.  Sdby,  2  Ld.  JRaym.  1118,  1  Salk.  211;  Wilson  v.  Fuller, 
3  Q.  B.  68;  Brown  v.  Castles,  11  Cash.  S50 ;  Blacks  v.  CaOett,  S  Litt.  W) ;  or 
suits  sustained  or  relief  granted  therefor  in  equity  {Brereton  v.  Coioper,  2  Bro,  P, 
C.  535;  Tottenham's  Estate,  15  Ir.  Ch.  308 ;  Dimmock  v.  Ballet,  L.  R.  {2  Ch.) 
21;  Flint  V.  Woodin,  9  Hare  618;  Abbott  v.  Sworder,  4  De  G.  &  Sm.  U8 ; 
McShane  v.  Hazelhurst,  50  Md.  107 ;  Wise  v.  Fuller,  2  Stew.  Eq.  257 ;  Boynton 
V.  Hazelhoom,  14  AUen  107) ;  or  the  profits  derived  from  a  theatre  [Harrit  v. 
Kemble,  5  Bligh  730  ;  Bryan  v.  Hitchcock,  43  Mo.  527) ;  or  the  amount  of  busi- 
ness done  at  an  inn  {Dobell  v.  Stevens,  S  B.  &  C.  623 ;  Pearson  v.  Wheeler,  By. 
&  Moo.  303;  Pilmore  v.  Hood,  5  Bing.  N.  C.  97 ;  Bowringy.  Stevens,  2  C.  &  P. 
337 ;  Richardson  v.  Dunn,  8  C.  B.  {N.  S.)  655;  Hutchiiison  v.  Morley,  7  ScoU 


112  CASES  IN  CHANCERY.  [33  Eq. 

Crosland  v.  Hall. 

farming  and  gardening  implements,  farm  products  &c.,  of  the 
value  of  from  $500  to  $600.  Prior  to  the  day  above  mentioned, 
December  24th,  1877,  she  concluded  to  go,  with  her  children,  to 
Australia,  to  which  place  she  was  to  be  followed  by  her  husband. 
On  that  day  she  executed  and  acknowledged,  with  her  husband,  a 
deed  of  conveyance  in  fee  of  the  real  property,  but  neither  any 
consideration  nor  any  grantee  was  mentioned  in  the  instrument. 
Blanks  for  both  were  left  in  it,  to  be  filled  up  when  the  husband 
should  have  found  a  purchaser  for  the  property.  Their  object 
was  to  provide  the  husband  in  this  way  with  the  means  of  con- 
veying the  property  in  the  wife's  absence.  She  gave  him  no 
authority  in  writing  to  fill  the  blanks  or  deliver  the  deed.  She 
afterwards  departed  for  Australia,  in  February,  1878,  taking 
with  her  her  children,  leaving  her  husband  here,  and  leaving  the 
deed  in  his  possession  for  the  purpose  before  mentioned.  In 
December,  1878,  Crosland  agreed  with  Reuben  P.  Hall  to  con- 
vey the  real  and  personal  property  to  him  in  consideration  of  the 
assignment  to  the  former  of  one-half  of  certain  letters-patent,  and 
the  royalty  thereunder,  for  what  was  called  a  "  medico-electric  " 
plaster.  The  agreement  was  carried  out.  The  name  of  Hall's 
wife  was,  at  his  request,  inserted  in  the  deed  as  grantee.  The 
blank  for  the  consideration  was  filled  so  that  the  deed  ex- 
pressed a  consideration  of  $6,000.  The  personal  property  was, 
at  Hall's  request,  also  transferred  to  his  wife.  An  assignment  of 
the  interest  in  the  letters-patent  was  made  to  Crosland.     When 

S4I;  Mather  v.  Eobinson,  47  Iowa  4OS ;  Irving  v.  Thomas,  IS  Me.  4IS) ;  or  the 
receii)ts  from  cutting  timber  on  the  lands  in  question  {Lowndes  v.  Lane,  2  Cox. 
363  ;  Spurr  v.  Benedict,  99  Mass.  463) ;  or  liay  {Mooney  v.  Miller,  102  Mass.  217; 
Martin  v.  Jordan,  60  Me.  531 ;  Coon  v.  Atwell,  46  N.  H.  510) ;  or  their  general 
productiveness  (  Wright  v.  Wright,  37  Mich.  55  ;  Hutcheon  v.  Johnson,  33  Barb. 
392;  Taylor  v.  Fleet,  4  Barb.  95  ;  Pitts  v.  Cottingham,  9  Port.  675) ;  or  the  pro- 
ductive capacity  of  a  mill  {Sieveking  v.  Litzler,  31  Ind.  13;  Faribault  v.  Sater, 
13  Minn.  223 ;  Donelmn  v.  Young,  Meigs  155) ;  or  the  income  received  from 
defendant's  business  and  good-will  [Dwight  v.  Chase,  3  III.  App.  67  ;  see  JSoet- 
iing  V.  Wright,  72  III.  390  ;  Wells  v.  Millet,  23  Wis.  64) ;  or  the  number  of  sub- 
scribers and  advertisers  of  a  newspaper  [Harvey  v.  Smith,  17  Ind.  272) ;  or  the 
net  earnings  of  a  factory  {Powell  v.  Elliott,  L.  R.  {10  Ch.)  424;  Smith  v.  Newton, 
59  Oa.  113) ;  or  the  productiveness  of  a  mine  {Starnes  v.  Ei-win,  10  /red.  226; 


6  Stew.J  OCTOBER  TERM,  1880.  113 

Crosland  v.  Hall. 

the  bargain  was  made  there  was  a  mortgage  of  $400  on  the 
Crosland  property.  At  the  making  of  the  agreement  for  ex- 
change, Hall  agreed  to  lend  Crosland  $500  to  enable  him  to  go 
to  Australia.  To  raise  that  money  and  $200  for  himself.  Hall 
and  his  wife  executed  a  mortgage  for  $700  to  Crosland  on  the 
property,  which  Crosland  was  to  negotiate.  Leverett  Newcomb, 
to  accommodate  Crosland  and  to  enable  the  latter  to  get  the  $500 
by  means  of  the  mortgage  for  $700,  agreed  with  Hall  and  Cros- 
land to  advance  the  $200  to  Hall  on  the  security  of  the  assign- 
ment of  the  bond  and  mortgage  by  Crosland  to  him.  He  took 
the  assignment  accordingly,  and  advanced  $20  on  account  of  the 
$200  to  Hall  at  the  time,  and  agreed  to  pay  the  balance  of  the 
$200  in  five  or  six  days  thereafter.  A  few  days  afterwards,  he 
paid  to  Hall  $24.10.  Shortly  thereafter,  Crosland,  having  become 
suspicious  that  Hall  had  defrauded  him  in  the  exchange,  bor- 
rowed $80  of  Newcomb  to  pay  his  expenses  to  Chicago,  where  he 
went  to  make  inquiry  about  the  patent.  A  new  assignment  of 
the  bond  and  mortgage  was  thereupon  made  by  Crosland  to  New- 
comb,  to  secure  the  sum  of  $280,  the  amount  which  Newcomb 
had  agreed  to  pay  Hall  and  the  $80  lent  by  him  to  Crosland. 
Afterwards,  Crosland  having  become  satisfied  that  Hall  had  de- 
frauded him,  forbade  Newcomb  to  pay  Hall  any  more  money, 
but  Newcomb,  notwithstanding,  did,  on  Hall's  demand,  pay  him 
the  balance  of  the  $200.  Hall  and  his  wife,  soon  after  the  ex- 
change was  made,  went  into  possession  of  the  Crosland  property, 

Gifford  V.  Carvill,  29  Cal.  589;  Tuck  v.  Dawning,  76  III.  71;  SmaU  v.  Atwood, 
Tou.  461 ;  Jennings  v.  Broughton,  17  Beav.  234) ;  or  the  quantity  of  saltpetre 
which  so  much  nitrons  earth  would  yield  (Perkins  v.  Rice,  6  Litt.  218  ;  Peyton 
T.  Butler,  3  Hayw.  I4I) ;  or  the  quantity  of  wool  that  sheep  would  shear  per 
nead  (Bryant  v.  Crosby,  40  Me.  9) ;  or  the  extent  of  sales  of  an  engraving 
LShaeffer  v.  Sleade,  7  Blackf.  178) ;  or  of  a  patent  (Allin  v.  MiUison,  72  III.  201; 
David  V,  Park,  103  3fass.  501 ;  Somers  v.  Richards,  46  Vt.  170  ;  Galling  v.  Newell, 
9  hid.  572  ;  Swazey  v.  Herr,  11  Pa.  St.  278). 

But  representations  as  to  pi-obable  sales,  or  value,  or  productiveness,  are  not 
actionable  (3Iiller  v.  Young,  S3  III.  354;  Bishop  v.  Small,  63  Me.  12 ;  Hughes 
V.  Antielam  Co.,  34  Md.  317  ;  Crossman  v,  Penrose  Co.,  26  Pa.  St.  69;  Pedrick  v. 
Porter,  5  Allen  324;  Pike  v.  Fay,  101  Mass.  134;  Hawkins  v.  Campbell,  6  Ark. 
513;  Cooky  on  Torts  484;  3  Am.  Law  Rev.  450).— Rep. 


114  CASES  IX  CHANCERY.  [33  Eq. 

Croeland  v.  Hall. 

and  have  held  it  ever  since.  The  complainaut  kuew  nothing  of 
the  transaction  with  Hall  (she  went  to  Australia  and  has  never 
retarued),  until  after  it  had  been  completed.  She  never  affirmed, 
but,  on  the  contrary,  repudiated  it.  She  knew  nothing  of  the 
transaction  with  Newcomb.  She  brings  this  suit  by  her  next 
friend  to  obtain  a  decree  declaring  the  deed  and  the  transfer  of 
the  personal  property,  and  the  mortgage  to  Newcomb,  void,  and 
requiring  Hall's  wife  to  reconvey  the  property,  real  and  per- 
sonal, to  her,  and  Newcomb  to  give  up  the  mortgage  to  be  can- 
celed. Her  claim  to  relief  is  based  on  the  ground  that  the  deed 
for  the  real  property  is  void,  because,  though  it  was  signed  and 
acknowledged  by  her,  yet  there  was  then  no  grantee  named 
therein,  and  she  never  gave  lawful  authority  to  her  husband  or 
any  one  else  to  insert  therein  the  name  of  any  person  as  grantee ; 
and  next  that  the  deed  was  obtained  under  fraudulent  misrepre- 
sentations made  by  Hall  to  her  husband.  As  to  the  mortgage, 
she  insists  that  if  the  deed  to  Hall's  wife  is  void,  the  mortgage  is 
void  also.  I  do  not  consider  it  necessary  to  pass  upon  the  ques- 
tion whether  the  deed  is  void  in  law  or  not.  I  am  satisfied  that 
the  conveyance  of  the  land  and  the  transfer  of  the  personal  prop- 
erty ought  to  be  set  aside  on  the  ground  of  fraud.  In  the  ex- 
change, Hall  made  a  false  representation  of  at  least  one  very 
material  fact  to  Crosland.  The  complainant,  in  her  bill,  al- 
leges that  Hall  represented  to  Crosland  that  he  had  received 
for  half  of  tlie  royalty  under  the  patent,  $800  a  year,  in  quarter- 
yearly  payments.  The  answer  not  only  denies  that  he  made  that 
statement,  but  alleges  in  substance  that  what  he  said  was  that  he 
had  received  $200  a  year,  in  quarter-yearly  payments.  But 
Crosland  swears  that  Hall  told  him,  when  they  were  bargaining 
for  the  exchange,  that  the  half  of  the  royalty  under  the  letters- 
})atent  had  paid  him  and  was  then  paying  him  $800  a  year,  and 
was  "  getting  better  all  the  time,  and  was  only  in  its  infancy." 
Major  Walker,  a  counselor  at  law  in  Vineland,  at  whose  officc 
and  by  whom  the  blanks  in  the  deed  were  filled,  and  the  assign- 
ment of  the  interest  in  the  patent-right  and  royalty  drawn,  and 
by  whom  the  execution  of  it  was  witnessed,  testifies  that  while 
they  were  in  his  office,  at  the  time  of  the  exchange  of  the  papers, 


6  Stew.]  OCTOBER  TERM,  1880.  115 

Crosland  v.  Hall. 

Hall  said  that  he  had  received  from  the  royalty  from  $300  to 
$500  a  quarter,  aud  that  that  income  would  enable  Crosland  to 
live  at  his  ease.  Crosland  swears  to  the  same  conversation.  The 
defendants,  Hall  and  wife,  by  their  answer,  not  only  deny  that 
he  told  Crosland  that  Hall  had  received,  for  half  of  the  royalty, 
8800  a  year,  but  they  give  the  impression  that  they  mean  to  say 
that  he  never  made  any  representation  on  the  subject  to  Cros- 
land at  all,  but  that  all  the  representation  that  was  made  was 
made,  not  to  Crosland,  but  to  the  complainant  herself.  They 
swear,  in  the  answer,  that  the  complainant  herself,  in  or  about 
October,  1877,  oifered  to  sell  the  property  to  Hall  in  considera- 
tion of  the  half  interest  in  the  letters-patent  and  royalty,  and  that 
he  told  her  that  the  amount  received  was  $200  a  year ;  but  it 
is  clear  that  this  statement  is  entitled  to  no  credit  whatever.  It 
is  true,  they  produce  a  witness,  Ransford  P.  Crowell  (neither 
Hall  nor  his  wife  was  sworn  in  the  cause),  who  testifies  that,  in 
November,  1877  (he  says  it  was  just  before  the  shop  was  de- 
stroyed by  fire),  in  his  meat-shop,  in  Vineland,  he  heard  a  con- 
versation between  the  complainant  and  Hall,  who  was  employed 
there,  in  which  she  said  to  Hall  that  "  she  was  going  away,  and 
Avould  leave  with  her  husband  a  deed  in  blank,  with  her  name 
signed  to  it,  for  her  husband  to  dispose  of  as  he  thought  best,  and 
that  she  was  willing  that  her  husband  should  make  the  trade  if 
he  thought  best."  But  the  shop  was  burned  in  September,  1877, 
ind  Hall  and  his  wife  say,  in  the  answer,  that  it  was  in  October, 
1877,  when  the  complainant  spoke  to  Hall  on  the  subject,  so 
that  if  the  conversation  took  place  in  the  shop,  it  must  have 
been  in  or  before  September,  which  is  prior  to  the  time  mentioned 
by  Hall  and  his  wife  as  the  time  when,  as  they  say,  the  com- 
plainant first  spoke  to  him  on  the  subject.  But  further :  the 
complainant  swears  that  she  never  had  any  conversation  with 
Hall  on  the  subject,  and  Crosland  swears  that  it  was  in  Decem- 
ber, 1877,  when  the  matter  was  first  spoken  of,  and  then  it  was 
by  Hall  to  him.  The  statement  as  to  the  amount  which  Hall 
liad  received  for  the  half  of  the  royalty  was  an  important  and 
material  representation,  calculated  to  deceive  Crosland  as  to  the 
value  of  that  which  Hall  was  then  proposing  to  give  him  in  ex- 


116  CASES  IN  CHANCERY.  [33  Eq. 

Crosland  v.  Hall. 

change  for  the  property.  The  royalty  was  derived  from  the  sale 
of  the  patented  article,  and  the  amount  which  Hall  had  received 
and  was  then  receiving  was  a  criterion  of  its  value.  That  it  was 
so  intended  appears  from  Crosland's  testimony,  which  is  as  fol- 
lows :  Hall,  knowing  that  the  Crosland  property  was  for  sale, 
in  December,  1878,  called  on  Crosland,  on  the  premises,  and 
looked  at  it,  and  inquired  of  Crosland  the  price.  He  was  told 
it  was  $5,000  cash.  He  said  he  did  not  know  whether  his 
family  would  like  to  live  in  the  country  or  not.  Crosland  ex- 
hibited to  him  a  photographic  view  of  the  buildings,  and  Hall 
said  he  would  take  it  home  and  show  it  to  his  family.  A  few 
days  afterwards,  Crosland  saw  him  at  the  post-office,  and  asked 
him  how  his  family  liked  the  place.  He  answered  that  they 
liked  it  very  well,  and  he  said  he  would  go  with  him  and  look 
at  it  again.  They  went  together  to  the  property  accordingly) 
and,  after  Hall  had  examined  it  again,  he  and  Crosland  went 
into  the  house,  and  then  he  proposed  the  exchange  of  the  half 
of  the  patent-right  and  royalty  for  the  property.  Crosland 
swears  that  Hall  then  said  that  he  had  a  proposition  to  make, 
and  on  Crosland's  asking  what  it  was,  he  replied  that  he  owned 
a  royalty  in  a  plaster,  a  galvano-electric  plaster,  which  was  then, 
as  he  said,  being  manufactured  by  a  firm  in  Chicago.  Crosland, 
in  his  testimony,  proceeds  as  follows  : 

"  Said  he,  *  Now  I  will  give  you  one-half  interest  in  it  [the  royalty]  for  this 
property ;  it  will  realize  you  $800  a  year — 1200  a  quarter — and  you  will  re- 
ceive it  in  three  days  after  it  is  due  ;  see  what  a  nice  thing  that  will  be  for  you 
and  your  family — aud  it  will  get  better  all  the  time;  the  thing  is  only  in  its 
infancy ;  the  company  has  got  $20,000  invested  in  it,  and  I  would  not  take 
$20,000  to-day  for  the  other  half  of  the  royalty ;  I  assure  you,  Crosland,  I 
would  not  make  you  such  an  offer  as  that  if  I  had  not  got  plenty  to  live 
on  without  it ;  I've  got  $3,000  a  year  coming  in  from  other  sources,  and 
I  am  doing  a  deed  of  charity  to  give  you  half  of  the  royalty ;  I  don't 
care  about  a  farm  for  myself;  if  I  make  a  trade  with  you  it  shall  be  for 
my  boys  to  farm  and  keep  them  out  of  mischief;  I  would  build  a  brick 
residence  up  in  the  peach  orchard  for  myself  and  wife,  and  let  the  boys  run 
the  farm;'  he  said  the  half  of  that  royalty  was  worth  a  hundi'ed  farms;  I 
said,  'Mr.  Hall,  are  you  telling  me  the  truth?'  'Crosland,'  said  he,  'do  you 
suppose  I  would  tell  you  a  lot  of  lies,  and  rob  you  and  your  children  out  of 
your  little  home  ?  don't  you  know  I  am  a  member  of  the  church,  and  in  good 
standing  ? '  He  then  held  up  his  hands  as  if  he  were  praying,  and  said,  'As 


6  Stew.]  OCTOBER  TERM,  1880.  117 

Crosland  v.  Hall. 

God  is  my  judge,  Crosland,  I  wish  He  may  strike  me  dead  if  every  word  I  have 
told  you  is  not  true ;  I  am  your  friend  ;  I  am  none  of  your  Vineland  sharks; 
what  I  offer  you  will  be  a  living  for  you  and  your  children ;  now,  if  we  make 
such  a  trade,  I  don't  want  you  to  say  a  word  about  it  to  any  one,  and  so  long 
as  you  are  going  to  Australia  with  Mr.  Stiles,  it  is  nobody's  business  ;  there  are 
men  in  this  town  [Vineland]  who  envy  me  because  I  can  live  without  work ;  they 
would  like  to  know  my  business,  but  I  will  not  tell  it  to  them ;  now  if  you  will 
come  down  town  with  me,  we  will  go  to  E.  M.  Turner's  [Mr.  Turner  was  a  lawyer 
in  Vineland]  office,  and  get  the  thing  fixed  up;'  I  said  'Now,  Mr.  Hall,  if 
I  make  a  trade  with  you,  and  all  is  true  what  you  have  told  me,  how  am  I  to 
get  to  Australia?'  Hall  said,  'I  value  my  royalty  at  $6,000,  and  you  value 
your  place  at  $5,500 ;  I'll  lend  you  $500  to  pay  your  way  to  Australia ;  you 
have  a  mortgage  on  your  place  for  $400  ;  the  $500  I  lend  you  and  the  $400  on 
the  place  will  make  $900 ;  now,  Crosland,  I  won't  be  hard  on  you  ;  I  will  give 
you  a  good  chance ;  I  will  let  you  receive  the  royalty  for  two  years — then  the 
$500  I  loan  you  and  the  $400  will  be  stopped  out  of  the  royalty,  and  then  the 
royalty  is  yours  again.' " 

Croslaud  adds : 

"  Well,  of  course  I  agreed  to  trade  him  ;  he  was  to  give  me  the  $500  when 
we  got  to  the  house,  or  bring  it  with  him ;  it  was  to  be  cash  when  the  deed 
was  made." 

Crosland  further  says  that  in  IMajor  Walker's  oflfice,  when  the 
papers  were  exchanged,  he  asked  Walker  what  he  thought  of 
the  trade  he  had  made,  and  Walker  said  that  it  "  was  too  much 
like  a  lottery,  those  patent  plasters,"  and  Hall  replied,  "  Major 
AValker,  I  am  giving  Crosland  what  will  be  a  living  for  himself 
and  family,  and  it  will  realize  him  from  $300  to  $500  a  quarter;" 
and  Crosland  is,  as  before  stated,  corroborated  on  this  point  by 
Major  Walker.  Those  statements  made  by  Hall  as  to  the  amount 
which  he  had  derived  and  was  deriving  from  the  half  of  the 
royalty  which  he  was  selling  to  Crosland,  were  untrue  to  his 
knowledge.  He  had  knowledge  on  the  subject,  and  Crosland 
had  none,  and  his  asseverations  of  the  truth  of  his  statements 
were  calculated  and  designed  to  induce  Crosland  to  rely  on  them. 
The  misrepresentation  was  a  gross  fraud,  and  is  suflficient  ground 
for  setting  aside  the  conveyance  and  transfer  of  Mrs.  Crosland's 
property.  Hall  and  his  wife  have  not  attempted  to  show  that 
the  half  of  the  royalty  had  any  value  whatever,  but,  on  the  hear- 
ing, relied  on  the  want  of  proof  on  the  subject  of  value  or  pro- 


118  CASES  IX  CHANCERY.  [33  Eq. 

Crosland  v.  Hall. 

ductiveness.  But  the  fact  that  he  made  the  statement  in  Major 
"Walker's  office,  that  the  half  had  produced  and  was  producing 
him  from  $300  to  $500  a  quarter,  or  from  $1,200  to  $2,000  a 
year,  is  established,  and  supports  the  testimony  of  Crosland  that 
Hall  told  him  that  he  had  realized  and  was  realizing  from  it 
$800  a  year.  The  bill  alleges  that  the  half  had  never  produced 
as  much  as  even  $200  a  year,  and  the  answer  does  not  deny  it. 
Nor  does  it  denv  the  alleviations  of  the  bill  as  to  the  small  and 
inconsiderable  value  of  the  letters-patent  and  royalty.  The  evi- 
dence shows  gross  and  deliberate  deceit,  with  design  to  circum- 
vent, on  the  part  of  Hall.  It  may  be  added  that  the  bill  alleges 
that  he  had  anticipated  the  royalty  up  to  April  1st,  1879,  al- 
though he  transferred  the  half  of  it,  from  January  1st,  1879,  to 
that  date,  to  Crosland,  and  the  answer  does  not  deny  it.  There 
will  be  a  decree  requiring  Hall  and  wife  to  reconvey  the  property, 
both  real  and  personal,  to  the  complainant,  and  Crosland  will  be 
required,  at  the  same  time,  to  deliver  to  Hall  an  assignment,  duly 
executed,  for  the  interest  in  the  patent-right  and  royalty  &c.  as- 
signed by  Hall  to  him,  and  to  pay  any  royalty  he  may  have  re- 
ceived thereunder.  Hall  and  wife  will  be  required  to  account 
and  pay  for  the  use  and  occupation  of  the  property,  real  and 
personal,  and  he  will  be  required  to  account  for  and  pay  the  $200 
received  by  him  from  Mr.  Newcomb,  with  interest  thereon.  As 
to  the  amount  due  Mr.  Newcomb  on  his  mortgage,  the  complain- 
ant must  do  equity.  She  must  pay  the  money,  $280,  with 
interest,  advanced  by  him  on  the  security  of  the  assignment  of 
the  mortgage.  Of  that  money,  $80  were  advanced  to  enable 
Crosland  to  make  inquiries,  with  a  view  to  recovering  back  her 
property  if  a  fraud  had  been  committed  by  Hall.  That,  as  well  as 
the  rest  of  the  $280,  was  paid  on  a  mortgage  which  was  given 
by  Hall  and  his  wife  on  the  property,  to  which  tlie  latter  had 
title  by  a  deed  executed  by  the  complainant  and  her  husband, 
and,  so  far  as  Mr.  Newcomb  knew,  it  was  duly  made  and  exe- 
cuted and  acknowledged.  The  mortgage  was  given  by  Hall  and 
his  wife  to  raise  money  for  them — $200  for  their  own  use  and 
the  rest  to  be  lent  by  them  to  Crosland.  Newcomb  paid  $44,10 
of  the  S200  before  any  notice  not  to  pay  was  given  him,  and  as 


6  Stew.]  OCTOBER  TERM,  1880.  119 

Hoxsey  v.  Midland  E.  R.  Co. 

to  the  rest  he  took  the  advice  of  counsel  before  paying  it.  He 
should  be  protected,  under  the  circumstances,  from  loss  in  the 
setting  aside  of  the  conveyance,  and  he  should  have  his  costs 
payable,  in  the  first  instance,  by  the  complainant,  but  recoverable 
by  her  from  Hall.  Hall  will  be  required  to  pay  costs  of  both 
the  complainant  and  Newcomb. 


Thomas  D.  Hoxsey  et  al. 

V. 

The  New  Jeesey  Midland  Railway  Company  et  al. 

In  1868  and  1869  the  New  Jersey  Western  Railroad  Company,  acting  under 
legislative  authority,  constructed  parts  of  a  railroad  in  this  state,  and  the  com- 
plainants and  others  subscribed  and  paid  for  its  stock.  In  1870  it  was  consol- 
idated with  other  railroads,  built  or  to  be  built,  by  an  act  authorizing  compen- 
sation to  such  stockholders  of  the  New  Jersey  Western  as  were  dissatisfied 
therewith.  A  mortgage,  covering  all  the  property  of  the  consolidated  roads, 
was  given,  and  the  legality  of  the  consolidation  recognized  by  subsequent  leg- 
islation. Against  some  of  the  defendants  there  appeared  to  be  some  grounds 
for  applying  for  relief. — Held,  that  it  cannot  be  satisfactorily  determined,  on 
the  statements  of  the  bill,  whether  the  complainants  have,  by  acquiescence, 
lost  their  rights  as  stockholders,  and  the  demurrer,  being  too  general,  was 
overruled. 


Bill  for  relief  on  general  demurrer. 
Mr.  J.  W.  Taylor^  for  demurrant. 
Mr.  T.  D.  Hoxsey,  for  complainants. 

The  Chancellor. 

The  bill  states  that  the  complainants,  Thomas  D.  Hoxsey  and 
John  C.  Lloyd  (who  exhibit  the  bill  not  only  for  themselves,  but 
also  in  behalf  of  all  other  stockholders  of  the  New  Jersey  West- 
ern Railroad  Company  whose  stock  is  similarly  situated),  own 
500  shares  of  the  stock  of  that  company ;  that  the  company  was 


120  CASES  IX  CHAXCERY.  [33  Eq. 

Hoxsev  V.  Midland  R.  R.  Co. 

incorporated  under  a  special  act  of  the  legislature  of  tiiis  state, 
approved  March  21st,  1867;  that  in  1868  and  1869  it  surveyed 
and  located  for  itself  the  route  of  a  railroad  from  Hawthorne,  in 
Passaic  county,  to  a  point  at  or  near  Bloomingdale,  in  that 
county,  and  constructed,  or  nearly  constructed,  the  road  so 
located ;  tliat  the  construction  was  by  means  of  subscriptions, 
among  which  were  those  of  the  complainants  and  the  other  stock- 
holders in  whose  behalf  the  bill  is  filed,  to  the  capital  stock  of 
the  company,  duly  made  and  paid  in  for  the  purpose ;  that  the 
money  received  from  the  subscriptions  of  those  by  and  for  whom 
the  bill  is  filed  largely  contributed  to  the  work ;  that  in  1870, 
an  act  "  to  authorize  the  consolidation  of  the  capital  stock,  prop- 
erty, powers,  privileges  and  franchises  of  the  Xew  Jersey,  Hud- 
son and  Delaware  Railroad  Company  with  those  of  the  New 
Jersey  Western  Railroad  Company,  the  Suasex  Valley  Railroad 
Company,  and  the  Hoboken,  Ridgefield  and  Paterson  Railroad 
Company,  or  any  or  either  of  them,"  was  passed  and  approved  ; 
that  it  provided  a  plan  of  consolidation  by  means  of  a  joint 
agreement  of  the  companies  agreeing  to  consolidate,  but  the  bill 
avers  that  no  such  agreement  was  entered  into,  "by  which  the 
rights  of  the  complainants  as  stockholders  in  the  corporate  rights, 
powers,  property,  privileges  and  franchises  of  the  Western  com- 
pany were  lost  or  surrendered,"  and  that  the  defendants  allege 
that  there  was  a  verbal  agreement  between  the  stockholders  of 
the  Western  company  and  the  new  company,  the  consolidation, 
to  the  eflPect  that  the  stockholders  of  the  Western  company  were 
to  surrender  their  stock  in  exchange  for  stock  of  some  other 
company  which  would  pay  annual  dividends  of  three  and  a  half 
per  cent.  The  bill,  while  it  denies  that  there  was  any  such 
agreement,  states  that  the  complainants  would  have  accepted 
such  exchange,  but  none  was  ever  effected  or  offered.  It  further 
states,  substantially,  that  the  Midland  company  claims  to  have 
acquired  the  rights,  franchises  and  property  of  the  Western  com- 
pany by  consolidation. 

The  suit  is  brought  to  vindicate  and  establish  the  rights  of  the 
complainants  as  stockholders  of  the  Western  company  in  and  to 
the  property  and  franchises  which  that  company  owned  at  the  time 


6  Stew.]  OCTOBER  TERM,  1880.  121 

Hoxsey  v.  Midland  R.  R.  Co. 

of  the  alleged  consolidation.  The  bill  alleges  that  they  have 
never  surrendered  or  lost  their  rights,  but  that,  in  violation  of 
those  rights,  and  without  any  warrant  of  law  or  any  authority 
whatever,  the  franchises  of  the  Western  company  have  been 
usurped,  and  its  property  taken  into  possession  by  a  company 
claiming  to  be  a  consolidation  of  which  the  Western  company 
was  an  element,  and  that  they  have  never  consented  thereto, 
and  that  have  not  been  compensated  for  their  stock.  On  the 
argument  of  the  demurrer,  the  only  ground  assigned  was  that 
the  claim  made  by  the  bill  is  a  stale  one. 

The  act  of  1870,  before  referred  to,  provided  for  consolida- 
tion by  means  of  a  joint  agreement  for  consolidation  under  the 
corporate  seals  of  the  corporations  proposing  to  consolidate,  and 
subscribing  the  terms  and  conditions  thereof,  and  the  mode  of 
carrying  it  into  effect,  but  the  agreement  of  the  directors  was  not 
to  be  deemed  the  agreement  of  the  companies  until  it  should  have 
been  ratified  or  assented  to  by  such  number  of  the  stockhoklers 
of  the  respective  companies  as  should  represent  three-fourths  of 
the  capital  stock  actually  subscribed,  the  ratification  to  be  in 
writing,  and  signed  by  the  holders  of  the  stock,  or  their  duly 
authorized  agents  or  proxies,  and  acknowledged  or  proved  before 
an  officer  authorized  to  take  the  acknowledgments  of  convey- 
ances of  real  estate.  After  the  making  and  ratification  of  such 
agreement,  and  the  filing  of  a  duplicate  or  counterpart  thereof 
in  the  secretary  of  state's  office,  and  immediately  upon  and  after 
the  first  election  of  directors  by  the  consolidated  company,  the 
consolidation  was  to  take  effect.  The  act  provided  that  the  new 
company  should  be  known  as  the  New  Jersey  Midland  Railway 
Company,  and  should  succeed  to  the  powers,  privileges,  fran- 
chises, obligations  and  liabilities  of  the  companies  consolidated, 
that  all  contracts  made  with  either  of  the  companies  should  be 
performed  and  discharged  by  the  consolidated  company,  and  that 
all  property,  real,  personal  and  mixed,  and  all  debts  due  on  what- 
ever account,  as  well  as  of  stock  subscriptions  and  other  things 
in  action  belonging  to  the  corporations,  should  be  taken  and 
deemed  to  be  transferred  to  and  vested  in  the  consolidated  com- 
pany, without  further  act  or  deed ;  and  that  all  property,  rights 
of  way,  and  all  and  every  other  interest,  should  be  as  effectually 


122  CASES  IN  CHANCERY.  [33  Eq. 

Hoxsey  v.  Midland  R.  R.  Co. 


the  property  of  the  New  Jersey  Midland  Railway  Company,  as 
they  were  of  the  former  corporations  parties  to  the  agreement. 
The  act  provides  for  the  condemnation,  on  due  compensation,  of 
the  stock  of  any  stockholder  who  should  dissent  from  the  agree- 
ment, the  compensation  to  be  paid  by  the  consolidated  company ; 
and  thereupon  and  thereby  the  stock  condemned  was  to  be  sur- 
rendered and  assign-ed  to  it.  The  bill  states  that  the  defendants 
claim  that  a  consolidation  was  duly  effected,  and  the  complain- 
ants, while  they  admit  that  proceedings  looking  to  a  consolida- 
tion were  taken,  deny  that  such  proceedings  were  in  anywise 
valid  as  against  them  as  stockholders  of  the  Western  company. 
They  insist,  too,  that  the  mortgages  (made  in  1870, 1871  and 
1873)  given  by  the  Midland  company,  and  which  covered  the 
Western  road,  were  not  valid  as  against  them  or  their  rights,  as 
stockholders  in  the  property  which  was  of  the  Western  company, 
and  that  the  decree  in  foreclosure  thereof'  does  not  affect  their 
rights  as  such  stockholders,  because  they  were  not  permitted  to 
litigate  their  rights  therein.  They  allege  that  though  the  mort- 
gaged property  was  sold  under  the  foreclosure  by  the  master,  yet 
it  was  under  protest  from  them,  and  an  assertion  by  them  of 
their  rights  to  it.  The  bill  is  filed  to  compel  the  payment  of  the 
claim  of  the  complainants  and  others,  as  before  mentioned,  for 
their  stock,  before  possession  is  given  under  the  master's  sale, 
and  to  that  end  prays  an  injunction.  It  also  prays  a  decree  that 
the  defendants  be  required  to  pay  the  amount  of  the  par  value 
of  the  stock,  and  interest  thereon,  and  it  prays  general  relief, 
also.  The  defendants  are  Oscar  Keen,  the  master  to  whom  the 
execution  for  the  sale  of  the  mortgaged  premises  was  directed  and 
delivered,  and  by  whom  they  were  sold;  the  New  Jersey  Mid- 
land Railway  Company;  Garret  A.  Hobart,  receiver  of  that 
company ;  George  S.  Coe,  George  Opdyke  and  Abrara  S.  Hew- 
itt, trustees ;  Jabez  P.  Pennington,  trustee ;  Garret  A.  Hobart 
and  John  W.  McCullough,  receivers;  Abram  S.  Hewitt,  again, 
as  trustee,  and  Charles  Parsons.  All  of  them,  except  Mr.  Hew- 
itt, have  demurred.  It  does  not  appear  by  the  bill  why  some  of 
them  were  made  parties. 

So  far  as  the  injunction  is  concerned,  the  relief  sought  would 


6  Stew.]  OCTOBER  TERM,  1880.  123 

United  N.  J.  Eailroad  and  Canal  Co.  v.  Standard  Oil  Co. 

not  be  grunted.  The  complainants  have  stood  by  for  many 
years  and  have  taken  no  action  to  protect  their  claims  as  stock- 
holders. Not  only  have  the  mortgages  mentioned  in  the  bill, 
amounting  in  the  aggregate  to  $14,500,000,  been  given  on  the 
property  of  the  Midland  company,  including  in  it  the  Western 
road,  but  the  legislature  has,  by  public  act,  distinctly  and  ex- 
pressly recognized  the  validity  of  the  consolidation  (P.  L.  of  1871 
p.  1093),  and  otherwise  recognized  the  existence  of  the  consoli- 
dated company  as  a  corporation.  (P.  L.  of  1872  pp.  890, 92^  ;  P. 
L.  of  1873  p.  969.)  Under  such  circumstances,  and  after  such 
apparent  acquiescence  on  the  part  of  the  complainants  for  so  long 
a  time,  the  decree  in  the  foreclosure  proceedings  would  be  executed, 
notwithstanding  their  claim,  and  the  purchaser  under  the  execu- 
tion would  be  put  in  possession  of  the  mortgaged  premises. 

But  whether  the  complainants  have  absolutely  lost  all  their 
rights  as  stockholders  by  acquiescence  or  not,  cannot  be  satisfac- 
torily determined  on  the  statements  of  the  bill,  even  with  the  aid 
of  the  acts  of  the  legislature  just  mentioned.  No  relief  could 
be  granted  against  Charles  Parsons  or  Jabez  Pennington  on  the 
bill ;  for  it  does  not  appear  why  they  are  made  parties ;  nor 
against  the  trustees  under  the  mortgages,  or  the  receivers,  for 
there  is  no  ground  laid  for  it  in  the  bill.  But  there  appears  to 
be  a  ground  of  relief,  on  the  statements  of  the  bill,  against  the 
Midland  company. 

The  demurrer  is  too  extensive.  It  will,  therefore,  be  over- 
ruled. 


The  United  New  Jersey  Railroad  and  Canal  Com- 
pany et  al. 

V. 

The  Standard  Oil  Company  et  al. 

a  foreigrn  corporation,  without  any  authority  whatever,  laid  a  pipe  for  trans- 
porting oil  on  the  bottom  of  a  navigable  river,  on  lands  belonging  to  the  state, 
and  underneath  a  draw-bridge  of  complainant.    At  that  point  the  channel  was 


124  CASES  IN  CHANCERY.  [33  Eq. 

United  N.  J.  Railroad  and  Canal  Co.  v.  Standard  Oil  Co. 

so  deep  and  wid§  as  that  tlie  laying  of  the  pipe  there  would  not  interfere  with 
the  bridge.  A  preliminarj  injunction  to  prevent  such  pipe-laying  was  denied, 
because, 

(1)  The  pipe  had  been  laid  before  the  application  for  the  injunction  was 
made. 

(2)  The  lands  where  the  pipe  crosses  the  bridge  belong  to  the  state,  and  the 
complainants  have  no  legislative  authority  to  reclaim  them. 

(3)  The  pipe,  as  laid,  does  not  interfere  with  or  obstruct  the  maintenance 
and  operation  of  the  draw-bridge  nor  any  lawful  filling. 

(4)  The  complainant's  franchise  of  carrying  oil  is  not  exclusive,  and  there- 
fore does  not  prevent  any  other  company  from  doing  so,  if  not  in  contraven- 
tion of  the  company's  franchise,  much  less  so  when  it  appears  the  defendants 
intend  to  transport  only  their  own  oil. 


Bill  for  relief  on  bill  and  answer  and  affidavits  &c.  Motion 
for  preliminary  injunctions. 

Mr.  1.  W.  Scudder,  for  complainant. 

Mr.  R.  Gilchrist  and  Mr.  A.  P.  Whiieheadf  of  New  York,  for 
defendants. 

The  Chancellor. 

The  complainants,  the  United  New  Jersey  Railroad  and  Canax 
Company  and  the  Pennsylvania  Railroad  Company,  ask  for  a 
preliminary  injunction  to  restrain  the  defendants,  the  Standard 
Oil  Company,  a  foreign  corporation,  and  certain  persons  who  are 
acting  for  that  company  in  the  matter,  from  "  interfering,  or  in  any 
way  attempting  to  interfere,  with  the  complainants,  by  laying  any 
pipe,  either  on  or  over  or  under  the  railroad  tracks  of  the  com- 
plainants on  the  draw  of  their  railroad  bridge  over  the  Hacken- 
sack  river,  or  in  any  manner,  for  the  purpose  of  laying  such 
pipes,  interfering  with  or  occupying  the  railroad  tracks  or  other 
property  of  the  complainants,  and  from  laying  pipes  in  the 
Hackensack  river  under  or  over  the  before-mentioned  bridge, 
or  through,  along,  under  or  over  the  draw  therein,  and  from 
laying  any  pipes  on  land  under  tide- water  in  that  river,  and  from 
flowing  oil  in  the  pipes  already  laid  by  them." 


G  Stew.]  OCTOBER  TERM,  1880.  125 

United  N.  J.  Eailroad  and  Canal  Co.  v.  Standard  Oil  Co. 

The  grounds  of  the  complaint  are  that  the  defendants  have, 
against  the  protest  of  the  complainants,  and  by  forcible  persist- 
ence, laid  a  six-inch  iron  pipe  in  the  channel  of  the  Hackensack 
river,  under  the  draw  of  the  railroad  bridge  of  the  complainants, 
through  which  pipe  the  oil  company  intends  (and  such  is  the 
purpose  for  which  the  pipe  is  laid)  to  convey  oil  from  the  rail- 
road of  the  New  York,  Lake  Erie  and  Western  Railroad  Com- 
pany, at  or  near  Snake  Hill,  in  Jersey  City,  to  the  works  of  the 
oil  company  at  Constable's  Hook,  in  the  city  of  Bayonne ;  and 
the  complainants  claim  that  the  pipe,  though  laid  in  the  channel 
of  the  river,  which  is  navigable  tide- water  there,  is  laid  on  land 
which  they  own,  or  to  which  they  have  some  claim  of  title,  and 
also  that  the  purpose  is,  in  view  of  their  own  rights,  an  unlawful 
one,  viz.  to  carry  oil,  which  the  complainants  have  a  franchise  to 
carry,  for  tolls ;  in  the  exercise  of  which  franchise  they  insist 
they  ought  to  be  protected. 

In  the  case  presented,  the  complainants  do  not  appear  to  be 
entitled  to  the  injimction. 

In  the  first  place,  the  pipe  was  already  laid  when  the  bill  was 
^led,  and  there  is  therefore  no  ground  for  an  injunction  to  re- 
strain the  defendants  from  laying  it.  It  is  laid  on  the  bottom  of 
the  river,  in  the  channel,  where  the  water  is  at  least  twenty  feet 
deep  at  low  tide.  It  is  capable  of  being  moved  twenty  feet  or 
more  laterally  each  way,  so  as  not  to  interfere  with  the  driving 
of  any  piles  or  building  any  abutments  by  the  complainants 
which  might  be  requisite  or  proper  for  the  maintenance  of  the 
bridge.  It  can  be  raised  or  lowered,  as  occasion  may  require, 
and  will  in  no  wise  interfere  with  any  filling  where  it  is  laid. 
Though  the  complainants  make  positive  claim  of  title  to  the 
land  whereon  the  pipe  is  laid,  the  claim  is  not  sustained,  but, 
on  the  contrary,  it  appears  that  the  land  is  the  property  of  the 
state.  The  act  of  1869  (P.  L.  of  1869  p.  10S6),  under  which 
the  complainants  assert  a  right  to  it,  authorizes  the  United  Com- 
panies to  reclaim  and  to  erect  wharves  and  other  improvements 
in  front  of  any  lands  then  owned  by,  or  in  trust  for,  them,  or 
either  of  them,  or  which  were  held  by  any  company  in  which 
they  had  the  controlling  interest,  adjoining  the  Kill  vou  KuU  or 


126  CASES  IX  CHANCERY.  [33  Eq. 

Central  K.  E.  Co.  r.  Standard  Oil  Ck). 

any  other  tide-waters  of  this  state,  and  to  liave,  hold,  pos>css 
and  enjoy  the  same  as  owners  thereof,  when  so  reclaimed  and 
improved ;  provided  such  improvement  should  be  subject  to  the 
regulations,  where  applicable,  of  the  riparian  commissionei*s  as 
to  the  line  of  solid  filling  and  pier  lines ;  and  that  they  should 
pay  into  the  treasury  of  the  state  a  designated  sum  of  money  for 
the  privilege,  and  should  file,  in  the  secretary  of  state's  office,  on 
or  before  a  designated  day,  a  map  and  description  of  the  lands 
under  water  in  front  of  the  upland  before  referred  to.  Neither 
in  terms  nor  by  implication  did  this  act  give  the  companies  any 
title  or  claim  to  the  land  under  the  channel  of  the  river,  but  the 
title  thereto  still  remained  in  the  state.  The  state  is  not  here 
complaining  of  any  purpresture,  and  the  complainants  show  no 
special  damage  arising  to  them  from  the  laying  or  continuance 
of  the  pipe  in  the  channel.  They  have  no  claim  to  an  injunc- 
tion on  this  ground.  The  defendants  do  not  appear  to  have 
been  guilty  of  even  a  trespass  upon  the  property  of  the  com- 
plainants. 

But  the  complainants  insist  that  they  are  entitled  to  the  in- 
junction on  the  ground  of  an  unlawful  interference  with  their 
franchise  to  transport  goods  for  tolls  on  their  railroads.  This 
claim  may  be  briefly  disposed  of.  In  the  first  place,  their 
franchise  obviously  cannot  be  construed  into  a  monopoly  of 
transportation,  so  as  to  exclude  all  competition,  by  whatever 
means,  in  the  transportation  of  goods  for  hire ;  and,  in  the  next 
place,  it  may  be  added  (though  that  is  not  material  in  this  case), 
the  object  of  the  oil  company  appears  to  be  the  conveyance,  by 
means  of  the  pipe,  of  its  own  goods  alone. 

The  oil  company  is,  as  before  stated,  a  foreign  corporation.  It 
appears  to  have  acted,  in  laying  the  pipe  in  the  river,  entirely 
without  authority.  Indeed,  it  does  not  pretend  to  have  had  any. 
The  case  presented,  however,  does  not,  as  before  shown,  warrant 
the  granting  of  a  preliminary  iujuuction.  It  will  be  denied, 
but,  under  the  circumstances,  without  costs 


6  Stew.]  OCTOBER  TERM,  1880.  127 

Central  K.  K.  Co.  v.  Standard  Oil  Co. 

The  Centrax.  Railroad  Company  of  New  Jeesey  et  al. 

V. 

The  Stajjjdard  Oil  Company  et  al. 

After  complainants  had  constructed  their  railroad  tracks  through  a  city,  part 
of  the  lands  which  its  tracks  traversed  was  condemned  by  the  city,  in  order 
to  cross  them  with  a  street.  This  necessitated  a  bridge,  which  was  sixteen  feet 
above  the  tracks.  The  bridge,  although  built  by  the  company,  was  paid  for  by 
the  city.  Subsequently,  the  defendants,  by  virtue  of  a  resolution  passed  by  the 
city  authorities,  laid  a  pipe  for  transporting  oil  along  and  underneath  the  sur- 
face of  the  street,  and  crossed  complainants'  tracks  at  and  on  a  level  with,  and 
alongside  of,  the  bridge.  A  preliminary  injunction  to  prevent  such  crossing, 
applied  for  by  the  railroad  company  and  its  receiver  appointed  by  this  court, 
was  refused,  because, 

(1)  The  pipe  had  been  laid  before  the  application  for  the  injunction  was 
made. 

(2)  To  justify  its  allowance,  there  is  shown  no  irreparable  injury,  either 
from  leakage  of  the  oil  to  be  transported,  which  is  highly  inflammable,  or  in- 
terference with  the  elevation  of  the  bridge,  if  complainants  desire  to  raise  it. 

(3)  The  complainants  have  no  monopoly  in  carrying  oil,  and  hence  cannot 
object  to  lawful  competition. 

(4)  No  contempt  towards  this  court  appears  by  defendants'  action. 

Bill  for  relief.  On  bill  and  answer  and  affidavits.  Order  to 
show  cause  why  injunction  should  not  issue. 

3Ir.  B.  Williamson  and  Mr.  B.  Gummere,  for  complainants. 

Mr.  R.  Gilchrist  and  Mr.  A.  P.  Whitehead,  of  New  York,  for 
defendants. 

The  Chancellor. 

The  Central  Railroad  Company  of  New  Jersey  became  the 
owner,  by  purchase,  of  a  tract  of  land,  which  it  bought  for  the 
purposes  of  its  road  and  business,  and  over  which  its  tracks  were 
laid  through  the  city  of  Bayonne.  When  it  bought  the  land,  it 
took  title  in  fee.  Streets  had  been,  by  due  authority,  laid  out 
over  it  by  mapping.     It  built  its  road  over  it,  and  at  the  place 


128  CASES  IN  CHANCERY.  [33  Eq. 

Central  K.  K.  Co.  v.  Standard  Oil  Co. 

where  Thirtieth  street,  as  laid  on  the  map,  crossed  it.  The 
road  was  constructed  in  a  cut.  The  city  subsequently  took,  by 
condemnation,  part  of  the  land  of  the  railroad  company  for  that 
street.  A  bridge  was  necessaiy  at  the  crossing  over  the  railroad, 
which  at  that  place  was  about  sixteen  feet  below  the  grade  of  the 
street.  The  railroad  company  built  the  bridge,  but  was  allowed 
for  the  cost  of  it  in  the  assessment  upon  it,  for  the  benefits  of  the 
street  to  its  land  not  taken.  By  its  charter  it  was  bound,  as  is 
now  claimed  in  its  belialf,  to  build  the  bridge.  After  the  bridge 
was  built,  the  Standard  Oil  Company,  a  foreign  corporation, 
obtained  permission  (granted  by  resolution)  from  the  city  to  lay 
pipes  in  the  street.  The  pipes  were  to  be  part  of  a  line  which  it 
proposed  to  lay  for  a  conduit  for  oil  from  the  Erie  railroad  at 
Snake  Hill,  in  Jersey  City,  to  the  oil  company's  works  at  Con- 
stable's Hook,  in  Bayonne.  It  neither  obtained  nor  asked  for 
any  permission,  either  of  the  railroad  company  or  of  the  receiver 
thereof  appointed  by  this  court  on  proceedings  in  insolvency, 
who  was  in  possession  of  and  operating  the  road,  under  the  order 
of  this  court ;  and  it  had  no  authority  from  the  legislature  in  the 
premises;  but  claiming,  or  acting  on  the  assumption,  that  the 
bridge  was  part  of  the  street,  and  neither  having  nor  professing 
to  have  any  authority  except  that  derived  from  the  municipal 
authorities  of  Bayonne,  it  laid  pipes  (six  inches  in  diameter)  at 
and  alongside  of  the  bridge,  but,  as  it  insists,  not  supporting 
them  thereon  or  thereby,  and  when  the  bill  was  filed,  it  main- 
tained, or  was  in  the  attitude  of  maintaining,  the  pipes  there  by 
forcible  resistance  against  the  receiver  of  the  railroad  company. 
The  complainants,  the  railroad  company  and  the  receiver,  invoke 
the  protection  of  this  court  against  this  action  of  the  oil  company 
in  laying  and  maintaining  the  pipes,  and,  to  that  end,  ask  for  a 
preliminary  injunction.  They  base  their  claim  to  this  relief  on 
liie  ground  of  irreparable  injury,  insisting  that  the  oil  company 
had  no  lawful  authority  to  lay  the  pipes,  because,  as  they  urge, 
in  the  first  place,  the  city  could  give  it  no  right  to  do  so,  and,  in 
the  next  place,  if  the  city  had  the  power,  it  could  not  give  the 
authority  by  resolution,  but  must  do  so  by  ordinance;  and, 
further,  that  the  oil  company  is  unlawfully,  and  by  mere  usurpa- 


6  Stew.]  OCTOBER  TERM,  1880.  129 

Central  E.  R.  Co.  v.  Standard  Oil  Co. 

tion,  imposing  upon  the  bridge,  which  the  raih'oad  company 
claims  to  own,  or  the  place  where  the  pipe  is  laid,  a  servitude  at 
once  unauthorized,  inconvenient  and  dangerous,  and  an  unwar- 
rantable invasion  and  usurpation  of  the  rights  and  property  of 
the  railroad  company,  and  that,  too,  for  the  purpose  of  enabling 
the  oil  company  to  compete  with  the  railroad  company  in  the 
exercise  and  enjoyment  of  its  franchise  in  the  transportation  of 
oil  for  tolls  over  its  road,  or,  at  least,  to  deprive  it  of  tolls  which 
it  would  otherwise  get  (and  to  which  it  has  a  right)  by  such 
transportation.  It  is  also  urged  that  the  action  of  the  defend- 
ants in  digging  through  the  abutments  of  the  bridge  and  laying 
the  pipes  without  permission  of  this  court  (in  whose  hands,  as 
before  mentioned,  the  railroad  company's  property  and  aflPairs 
were  and  are),  was  a  contempt  of  court,  and  ought  to  be  charac- 
terized and  dealt  with  accordingly. 

The  oil  company,  on  the  other  hand,  insists  that  the  municipal 
government  had  authority  to  empower  it  to  lay  the  pipe  in  the 
street,  and  it  contends  that  the  bridge  is  part  of  the  street ;  and 
in  this  connection,  it  further  claims  that  the  city,  under  its  charter, 
by  the  condemnation  proceedings,  acquired  the  fee  of  the  land 
taken  from  the  railroad  company  for  the  street,  and  not  merely  a 
right  to  use  it  for  the  purposes  of  a  highway. 

The  railroad  company  was,  by  its  charter,  when  it  built  the 
bridge,  bound  to  "  construct  and  keep  in  repair  good  and  suf- 
ficient bridges  or  passages  over  or  under  its  railroads  where  any 
public  or  other  road  should  cross  them,  so  that  the  passage  of 
carriages,  horses  and  cattle  should  not  be  impeded  thereby  "  (P. 
L.  of  184-7  p.  133  §  ff) ;  and  the  complainants  insist  that  the 
bridge  was  built  by  the  railroad  company  under  its  statutory 
obligation  to  construct  and  maintain  it.  But  it  appears  that, 
though  built  by  it,  it  was,  in  fact,  paid  for  by  the  city,  and  the 
defendants  claim  that  therefore  it  is  to  be  regarded  as  the  prop- 
erty of  the  city,  and,  as  such,  subject  to  its  use  as  part  of  the 
street,  for  reasonable,  lawful  municipal  servitudes  and  uses. 
They  also  claim  that  the  city,  by  the  condemnation,  obtained  a 
right  to  use  the  air  space  above  the  railroad  for  such  purposes. 

The  city,  by  its  proceedings  for  opening  the  street,  condemned 

9 


130  CASES  IN  CHANCERY.  [33  Eq. 

Central  R.  R.  Co.  v.  Standard  Oil  Co. 

land  crossing  the  railroad  to  the  full  width  of  the  street.  The 
street  appears  to  be  of  the  width  of  eighty  feet,  of  which  forty- 
eight  are  devoted  to  travel  by  vehicles  and  the  rest  to  use  as 
sidewalks.  The  bridge  is  of  the  width  of  fifty  feet.  If  the 
city  is  to  be  held  to  have  acquired  by  the  condemnation  only  the 
right  to  a  convenient  crossing  for  travel,  obviously  it  must  be 
held  to  have  acquired  nothing  more  than  the  railroad  company 
was,  by  its  charter,  bound  to  furnish. 

The  defendants,  as  before  stated,  insist  that,  by  the  condemna- 
tion, the  city  acquired  a  fee  in  the  land  condemned.  By  the 
original  charter,  which  was  granted  in  1869  (P.  L.  of  1869  p. 
398),  it  was  provided  that  on  condemnation  the  laud  should 
vest  in  the  city,  and  by  the  supplement  (approved  March  28th, 
1873)  to  the  act  revising  the  charter  (P.  L.  of  1873  p.  Ji.69),  it 
was  enacted  that,  on  condemnation,  the  fee  simple  should  be 
vested  in  it ;  and  the  defendants  claim  that,  notwithstanding  the 
proceedings  for  condemnation  were  begun  before  the  passage  of 
the  latter  act,  yet  it,  by  relation  back,  gave  the  city  a  fee  in  the 
land  condemned.  But  apart  from  the  obvious  question  raised  by 
the  mere  statement  of  this  claim,  it  is  to  be  remarked  that  the 
claim  to  a  fee  in  the  land  in  question  is  in  direct  contrariety  to 
the  adjudication  of  the  supreme  court  in  N.  J.  Souihern  R.  R. 
Co.  v.  Long  Branch  Comm^rs,  10  Vr.  S8,  in  which  it  was  held 
that  a  municipal  corporation  under  a  condemnation  for  a  street 
across  a  railroad  track,  acquires  only  a  right  of  way ;  and, 
according  to  the  doctrine  of  that  case,  the  contrariety  would 
still  exist,  though  it  be  conceded  that  the  provision  of  the  sup- 
plement of  1873,  before  referred  to,  though  posterior  in  date  to 
the  beginning  of  the  proceedings  therein,  applies  to  the  con- 
demnation under  consideration. 

Whether  the  city  has  the  right  to  use  the  space  above  the 
railroad  for  any  other  purpose  than  travel  by  means  of  the 
bridge,  is  a  question  in  dispute  between  the  parties. 

It  is  urged  by  the  complainants,  however,  that  the  supreme 
court  has  decided  that  a  municipality  cannot  impose  on  the  land 
taken  for  its  streets  any  uses  or  servitudes  except  those  sanctioned 
by  law  or  custom,  and  that  therefore  it  is  established  that  the 


6  Stew.]  OCTOBER  TERM,  1880.  131 

Central  K.  K.  Co.  v.  Standard  Oil  Co. 

leave  given  to  the  oil  company  in  this  case,  even  though  it  had 
been    by    ordinance,   instead    of   resolution,  was    unauthorized. 

But  a  still  further  question  is  raised :  The  revised  charter  of  the 
city  (P.  L.  of  1S72  p.  686)  confers  power  (p.  704-)  on  the  munici- 
pal authorities  to  regulate  the  manufacture  and  keeping  of 
gunpowder,  petroleum,  fireworks  and  all  other  dangerous  and 
combustible  articles,  and  the  defendants  insist  that,  under  this 
power,  the  city  has  a  right,  with  a  view  to  public  protection,  to 
authorize  the  transportation  of  petroleum  through  the  city  by 
means  of  underground  pipes,  and,  to  that  end,  to  give  the  use 
of  the  streets,  or  parts  of  them,  for  the  purpose.  It  is  enough 
for  the  present  purpose  to  say  that  a  question  of  construction  is 
thus  presented.  The  complainants'  asserted  right,  on  which  the 
claim  to  relief  by  injunction  is  founded,  is  in  dispute. 

But  if  the  city  has  neither  any  right,  nor  even  any  shadow  of 
right,  under  its  charter,  to  authorize  the  laying  of  the  pipes, 
then  the  action  of  the  defendants  is  unwarranted,  and  is  a  tres- 
pass, and  equity  will  not  interfere  by  preliminary  injunction,  in 
case  of  trespass,  except  where  irreparable  injury  is  threatened. 
It  is  established  in  this  state  that  a  preliminary  injunction  will 
never  be  ordered  unless  from  the  pressure  of  an  urgent  necessity, 
and  to  prevent  what,  in  'equity,  is  regarded  as  irreparable  damage. 
Citizens  Coach  Co.  v.  Camden  Horse  R.  R.  Co.,  2  Stew.  Eq.  299. 
In  that  case  the  following  language  of  Chancellor  Williamson, 
the  elder,  is  quoted  with  approval : 

"An  injunction  ought  not  to  be  allowed  in  all  cases  of  trespass,  nor  to  pro- 
tect persons  in  the  enjoyment  of  every  right.  The  court  always,  to  restrain  a 
trespasser,  expects  a  strong  case  of  destruction  or  irreparable  mischief  to  be 
made  out,  or  that  the  trespass  should  have  so  long  continued  as  to  become  a 
nuisance.    A  perseverance  in  committing  acts  of  trespass  is  not  sufficient." 

In  the  case  of  Citizens  Coach  Co.  v.  Camden  Horse  R.  R.  Co., 

the  preliminary  injunction  complained  of,  the  order  for  which 

;     was  reversed,  was  issued  to  restrain  the  coach  company  from 

I     using  the  complainant's  railroad  tracks,  in  competition  with  it 

!    in  the  business  of  carrying  passengers,  in  the  exercise  of  its 


132  CASES  IN  CHANCERY.  [33  Eq. 

Central  R.  R.  Co.  v.  Standard  Oil  Co. 

franchise.  Such  injury  was  held  by  the  appellate  tribunal  not 
to  be  of  a  character  to  warrant  interim  interference. 

This  case  presents  no  condition  of  circumstances  demanding, 
by  reason  of  the  threatened  infliction  of  irreparable  injury,  the 
intervention  of  this  court  at  this  stage.  The  pipes  had  been  laid 
when  the  bill  was  filed.  The  allegation  of  danger  from  fire,  in 
view  of  the  leakage  of  oil  from  the  pipes,  and  the  highly  inflam- 
mable nature  of  the  substance,  is  met  by  proof  that  there  is  no 
danger,  and  the  offer  to  make  all  such  appliances  to  protect  the 
complainants  against  the  possibility  of  injury  from  leakage  of  the 
pipes  as  this  court  may  direct. 

It  is  suggested  by  the  complainants  that  the  existence  of  the 
pipes  will  be  an  obstruction  and  impediment  to  raising  the 
bridge  (which,  it  is  said,  is  contemplated,  and  which  they  allege 
is  necessary  for  the  protection  of  the  lives  of  brakemen  on  their 
freight  cars),  and  perhaps  prevent  it  entirely.  But  in  that  view, 
suffering  the  pipes  to  remain  where  they  have  been  put,  and  per- 
mitting them  to  be  used,  cannot  be  regarded  as  an  irreparable 
injury,  for  this  court  can  provide  for  that  contingency,  if  need 
be,  when  occasion  requires. 

The  oil  company  insists  that  the  pipes  are  not  supported  by 
the  bridge,  and  that  if  the  bridge  were  removed  they  would  still 
stand  in  place.  Whether  they  in  anywise  depend  on  the  bridge 
for  support,  is  at  most  a  subject  of  dispute. 

But  it  is  urged  that  the  object  of  the  laying  of  the  pipes  is  to 
deprive  the  complainants  of  part  of  their  business,  and  so  to  di- 
minish the  value  of  their  franchise  to  transport  goods  for  tolls, 
inasmuch  as  the  oil  comjiany  intends,  by  means  of  the  pipes,  to 
transport  oil  for  itself,  and  may  intend  also  to  transport  it  by 
this  means  for  others. 

The  complainants  have  no  claim  to  a  preliminary  injunction 
on  this  ground.  In  the  first  place,  the  case  just  cited  {Citizens 
Coach  Co.  V.  Camden  Horse  R.  R.  Co.)  would  seem  to  be  con- 
clusive authority  on  this  point.  And,  in  the  next  place,  they 
have  no  monopoly  of  transporting  goods  or  passengers  for  tolls 
by  all  means  whatever,  and,  of  course,  they  have  no  claim  to 
protection  against  lawful  competition. 


6  Stew.]  OCTOBER  TERM,  1880.  133 

Danser  v.  Warwick. 

It  will  not  be  out  of  place  to  remark,  though  my  conclusion 
in  no  wise  rests  upon  it,  that  the  oil  company  denies  that  it  in- 
tends to  transport  goods  for  others  by  means  of  the  pipe,  but 
alleges  that  it  intends  to  transport  only  its  own  goods  thereby, 
and  that,  most  manifestly,  cannot  be  construed  into  an  invasion 
of  any  franchise  of  the  complainants. 

As  to  the  imputed  contempt,  the  defendants-  do  not  appear  to 
have  been  actuated  by  any  disposition  to  contemn  or  disregard 
the  power  or  dignity  of  this  court. 

On  the  ground,  then,  that  there  is  no  necessity  or  ground  for 
interim  interference,  and  without  passing  upon  the  disputed  ques- 
tions, except  as  to  the  right  of  the  complainants  to  monopoly  of 
transportation  by  all  ways  or  means,  I  am  of  opinion  that  the 
order  to  show  cause  should  be  discharged,  but,  under  the  circum- 
stances, it  will  be  without  costs. 


Eliza  A.  Danser 

V. 

William  Warwick. 


1.  A  valid  trust  of  personal  property  may  be  created  by  mere  spoken  words, 
and  proved  by  parol  evidence. 

2.  A  valid  trust  of  a  mortgage  debt  may  be  created  by  parol,  for  though  a 
trust  thus  created  will  not  pass  any  interest  in  the  land  held  in  pledge,  yet  it 
is  good  as  to  the  debt,  and  will  entitle  the  cestui  que  (rust  to  the  payment  of  his 
debt  out  of  the  proceeds  of  the  sale  of  the  land. 


On  final  hearing  on  bill,  answer  and  proofs  taken  before  a 
master. 

Mr.  George  C.  BeeJcman,  for  complainant. 

Mr.  Joel  Parker,  for  defendant. 


134  CASES  IN  CHAXCERY.  [33  Eq. 


Danser  v.  Warwick. 


The  Yice-Chaxcellor. 

The  coiuplainaut  is  the  widow  of  David  C.  Danser.  She  seeks 
to  have  a  parol  trust  established  aud  enforced  against  the  defend- 
ant. She  alleges  that  her  husband,  some  mouths  before  his 
death,  assigned  the  bond  and  mortgage  in  controversy  to  the  de- 
fendant, upon  a  parol  trust  or  understanding  that  he  would  forth- 
with, or  by  a  short  day,  transfer  them  to  her.  The  transfer  to  the 
defendant  was  intended  to  be  merely  a  step  in  vesting  her  with 
title.  The  assignment  to  the  defendant  bears  date  February  1st, 
1875,  and  Danser  died  on  the  13th  day  of  the  following  Septem- 
ber. The  bond  and  mortgage  were  in  Danser 's  possession  at  the 
time  of  his  death,  and  have  since  then  been  constantly  in  the 
possession  of  the  complainant.  The  defendant  has  never  asked 
for  them,  nor  attempted  to  get  possession  of  them.  A  month  or 
six  weeks  prior  to  Danser's  death,  the  defendant  directed  an  as- 
signment to  be  drawn  to  the  complainant,  stating  to  the  person 
to  whom  he  gave  the  direction  that  he  must  draw  it  for  Danser, 
who  would  pay  him.  He,  at  the  same  time,  said  it  was  right 
that  the  old  lady — referring  to  the  complainant — should  have  the 
bond  and  mortgage.  Danser,  at  this  time,  was  prostrated  by  the 
disease  which  shortly  afterwards  caused  his  death.  The  defend- 
ant did  not  remain  to  execute  the  assign  ment,  but  said  he  would 
return  soon  and  do  so.  He  did  not  return  that  day.  He  was 
subsequently  informed,  on  two  or  three  different  occasions,  while 
Danser  was  living,  that  the  assignment  had  been  drawn  and  was 
ready  for  execution.  On  each  occasion  he  said  he  had  forgotten 
or  neglected  to  execute  it,  but  would  call  soon  and  do  so.  He 
never  fulfilled  his  promise.  Two  or  three  weeks  after  Danser's 
death,  he  called  for  the  assignment  Danser  had  made  to  him, 
and  which  he  had  left  when  he  gave  direction  for  the  draft  of 
the  one  to  the  complainant,  and  stated  that  he  meant  to  do  what 
was  right  about  the  matter,  but  he  would  not  execute  the  assign- 
ment to  the  complainant  until  things  were  fixed  up ;  Danser 
owed  him.  He  took  both  papers  aud  has  never  executed  the  as- 
signment to  the  complainant. 

This  narrative  com[)rises  only  those  facts  which  are  not  dis- 
puted by  either  party. 


6  Stew.]  OCTOBER  TERM,  1880.  135 

Danser  v.  Warwick. 

The  defendant  denies  that  the  mortgage  was  transferred  to  him 
subject  to  a  trust,  but  says,  on  the  contrary,  that  the  assignment 
was  made  to  satisfy  a  promissory  note  be  held  against  Daaser, 
upon  whicb  there  was  due  $2,000  of  principal  and  a  year  and  six 
or  seven  months'  interest.  His  explanation  of  the  preparation, 
by  his  direction,  of  an  assignment  to  the  complainant  is  this :  he 
says,  some  time  after  the  execution  of  the  assignment  to  him,  he 
ascertained  that  the  person  who  made  the  mortgage  had  no  title 
on  record  for  the  mortgaged  premises ;  that  he  went  at  once  to 
Danser  and  told  him  he  had  swindled  him,  and  that  if  he  did 
not  take  the  mortgage  back  he  would  make  him.  He  says  that 
Danser  replied  that  the  mortgagor's  title  was  all  right,  but  if  he 
was  dissatisfied  he  would  pay  him  his  debt,  or  give  him  another 
security,  and  he  could  then  re-assign  the  mortgage.  He  further 
says  that  it  was  ultimately  arranged  that  Danser  should  have  two 
mortgages,  which  were  then  liens  on  his  lands,  canceled,  and 
execute  a  mortgage  thereon  to  him,  and  he  was  then  to  assign 
the  mortgage  in  controversy  to  the  complainant.  He  says  it  was 
after  this  scheme  had  been  agreed  upon  that  he  ordered  the  as- 
signment to  the  complainant  to  be  drawn. 

These  statements  present  the  question  of  fact  to  be  decided. 
The  counsel  of  the  defendant,  however,  insists  that,  as  a  matter 
of  law,  the  bill  in  this  case  must  be  dismissed,  regardless  of  what 
the  evidence  demonstrates  the  truth  to  be  in  respect  to  the  trust 
alleged,  his  contention  being  that  the  trust  set  up  by  the  com- 
plainant is  one  which  cannot  be  established  except  by  written 
evidence.  The  trust,  it  will  be  observed,  affects  personal  prop- 
erty, and  not  lands.  The  subject  of  it  is  a  debt.  That  part  of 
the  statute  of  frauds  which  enacts  that  all  declarations  and  crea- 
tions of  trust  shall  be  manifested  by  writing  and  signed  by  the 
party  creating  the  same,  or  else  shall  be  void  and  of  no  effect, 
applies  only  to  trusts  of  lauds,  and  has  no  application  to  trusts 
of  personal  property.  A  valid  trust  of  personalty  may  be  created 
verbally,  and  proved  by  parol  evidence.  A  trust  of  personal  prop- 
erty, almost  precisely  like  the  one  under  consideration,  and  which 
had  been  created  by  mere  spoken  words,  and  was  supported  by 
only  parol  evidence,  was  upheld  by  Chancellor  Williamson  in 


136  CASES  IN  CHANCERY.  [33  Eq. 

Danser  v.  Warwick. 

Hooper  v.  Holmes,  3  Stock.  W2  ;  also  Kimball  v.  Morton,  1  Hal. 
Ch.  £6;  Sayre  v.  Fredericks,  1  C.  E.  Gr.  205;  Eaton  v.  Cook, 
10  a  E.  Gr.  55 ;  S  Story's  Eq.  Jur.  §  972 ;  1  Perry  on  Trusts 
§  86.  A  valid  trust  of  a  mortgage  debt  may  be  created  by 
parol ;  for,  though  a  trust  thus  created  cannot  embrace  the  land 
held  in  pledge,  yet  it  is  good  as  to  the  debt,  and  will  entitle  the 
cestui  que  trust  to  sufficient  of  the  proceeds  of  sale,  when  the  land 
is  converted  into  money,  to  pay  the  debt.  Sayre  v.  Fredencks, 
supra  ;  Benhow  v.  Townsend,  1  M.  &  K.  506  ;  Childs  v.  Jordan^ 
106  Mass.  321. 

It  must  be  held,  then,  that  the  trust  alleged  in  this  case  is  valid, 
and  if  it  has  been  sufficiently  proved,  the  complainant  is  entitled 
to  have  it  established  and  enforced.  The  question  then  is,  has  it 
been  proved  ?  A  high  degree  of  evidence  should  be  required. 
Before  the  court  engrafts  a  trust  upon  a  written  instrument,  abso- 
lute on  its  face,  it  should  require  the  most  cogent  proof.  Such 
proof,  I  think,  has  been  furnished  in  this  case.  The  undisputed 
facts  make  a  strong  case  against  the  defendant.  He  attempts  to  ex- 
plain and  moderate  the  force  of  the  one  having  the  greatest  weight. 
I  refer,  of  course,  to  the  fact  that  he  had  an  assignment  drawn 
to  the  complainant,  and  that  when  he  gave  the  order  he  said  it 
was  right  that  she  should  have  the  bond  and  mortgage.  His  at- 
tempted explanation  has,  however,  resulted  in  a  series  of  contra- 
dictions which  utterly  destroy  his  testimony. 

By  his  answer,  which  is  under  oath,  he  says  that  after  he  sent 
his  assignment  to  Ocean  county  for  record,  he  was  informed  that 
the  mortgagor  had  no  title  on  record  for  the  mortgaged  premises, 
and  that  he  went  at  once  to  see  Danser,  and  that  an  arrangement 
was  then  made  by  which  Danser  was  either  to  pay  his  debt,  or 
substitute  another  security,  and  he  was  then  to  re-assign  the 
mortgage.  His  assignment  was  not  lodged  for  record  until  Octo- 
ber 23d,  1875.  Danser  had  then  been  dead  more  than  a  month, 
so  that  the  arrangement,  at  the  time  stated,  was  unquestionably 
a  fabrication.  When  the  defendant  came  to  testify,  he  swore 
that  before  he  lodged  his  assignment  for  record,  he  had  heard, 
from  one  George  P.  Conover,  that  the  mortgagor  had  no  title,  and 
he  went  at  once  to  see  Danser.     But  it  is  perfectly  clear,  from 


6  Stew.]  OCTOBER  TERM,  1880.  137 

Danser  v.  Warwick. 

the  evidence,  that  Conover  could  not  have  given  this  informa- 
tion until  long  after  Danser's  death ;  for  he  did  not  have  it  him- 
self. Conover  obtained  his  information  from  the  mortgagor,  and 
the  mortgagor  swears  that  he  first  obtained  it  from  a  search  made 
in  December,  1876.  The  defendant  was  subsequently  recalled 
and  re-examined,  against  the  complainant's  objection,  and  with- 
out an  order  for  that  purpose,  and  then  swore  that  one  Edward 
P.  Jacobus  first  informed  him  that  the  mortgagor  had  no  title, 
and  that  this  information  was  given  to  him  very  soon  after  the 
assignment  was  made  to  him.  But,  upon  the  examination  of 
Jacobus,  it  was  shown  that  the  search  from  which  he  obtained 
his  information  was  not  made  until  after  Danser  had  been  dead 
more  than  a  month.  So  it  is  perfectly  clear  that  the  information 
which  the  defendant  says  led  to  his  interview  with  Danser  did 
not  come  to  him  until  after  Danser  was  dead,  and  the  conclusion 
is  therefore  unavoidable  that  no  such  interview  as  he  describes 
took  place.  The  tergiversation  of  the  defendant  upon  this  point 
renders  his  testimony  unworthy  of  credit.  I  find  it  impossible 
to  believe  him. 

It  must  also  be  remarked  that  the  defendant's  conduct  in  rela- 
tion to  the  custody  of  the  bond  and  mortgage,  as  portrayed  by 
himself,  shows  very  clearly  that  he  did  not  believe  they  were  his 
property.  He  says  the  bond  and  mortgage  were  delivered  to 
him,  with  the  assignment,  on  the  day  of  the  date  of  the  assign- 
ment, and  that  he  took  them  to  a  hotel,  in  which  he  and  Danser 
were  jointly  interested,  and  which  was  under  the  management  of 
Danser,  and  threw  them  in  a  desk  in  the  bar-room.  He  retained 
the  assignment.  He  gave  them  no  further  care  or  attention,  but 
carried  the  assignment  to  his  house  and.  placed  it  in  his  safe. 
He  does  not  know  when  or  how  Danser  got  possession  of  the 
bond  and  mortgage.  So  far  as  appears,  he  has  never  tried  to 
find  out.  Danser  did  not  live  in  the  hotel,  but  occupied  a  dwell- 
ing in  the  village  where  the  hotel  was  located.  The  defendant 
says,  that  while  Danser  was  sick,  on  the  occasion  of  his  last  visit  to 
him,  Danser  told  the  complainant  to  get  the  bond  and  mortgage 
and  give  them  to  him,  but  that  she  refused  to  do  so,  and,  to 
repeat  his  own  words,  "  she  was  just  as  cross  to  me  as  she  could 


138  CASES  IN  CHANCERY.  [33  Eq. 

Schmidt  V.  Opie  and  Keimer. 

be."  He  did  not  ask  Dauser  why  he  had  taken  them  from  the 
desk,  nor  did  he  insist  upon  their  being  at  once  surrendered. 
He  never  asked  for  them  after  Danser's  death,  nor  did  he  make 
any  attempt  to  obtain  possession  of  them.  Every  phase  of  his  con- 
duet  evinces  a  consciousness  that  he  had  no  right  to  them,  and 
that  any  attempt  to  take  them  from  the  possession  of  the  com- 
plainant would  be  met  by  a  resistance  which  he  knew  was 
grounded  in  right  and  truth.  The  evidence,  in  my  opinion, 
fully  establishes  the  trust  alleged. 

The  defendant  also  insists  that  the  trust  upon  which  the  com- 
plainant's action  is  founded  should  not  be  enforced,  because  it  was 
concocted  to  cheat  and  defraud  Danser's  creditors.  It  is  enough 
to  say  of  this  contention  that  no  such  defence  is  presented  by  the 
answer,  and  that  the  complainant's  right  to  a  decree  cannot  be 
defeated  by  a  defence  she  has  had  no  opportunity  to  meet  and 
disprove. 

There  must  be  a  decree  establishing  the  trust  and  requiring 
the  defendant  to  execute  it.     The  defendant  must  pay  costs. 


Caroline  Schmidt 


Abram  S.  Opie  and  William  H.  Reimer. 

1.  Any  one  liable  on  a  contract,  express  or  implied,  though  only  contin- 
gently liable,  is  a  debtor,  within  the  meaning  of  the  statute  of  frauds,  from  the 
date  of  liis  contract. 

2.  All  that  a  judgment  creditor  need  do,  who  seeks  the  aid  of  a  court  of 
equity  against  his  debtor's  land,  is  to  show  a  judgment  at  law  creating  a  lien 
thereon ;  but  if  he  seeks  aid  in  respect  to  his  debtor's  personal  estate,  he  must 
show  not  only  a  judgment,  but  that  an  execution  has  been  issued. 

3.  On  an  agreement  for  the  sale  of  land  being  made,  the  purchaser  becomes, 
in  equity,  the  owner  of  the  land,  and  the  vendor  becomes  the  owner  of  the 
purchase-money. 


6  Stew.]  OCTOBER  TERM,  1880.  139 


Schmidt  v.  Opie  and  Keimer. 


4.  If  a  mortgagor  executes  a  mortgage  for  a  fraudulent  purpose,  and  the 
mortgagee  accepts  it,  with  knowledge  of  the  mortgagor's  purpose,  intending  to 
aid  him  in  such  purpose,  the  mortgage  will  be  held  void  as  to  those  who  are 
defrauded  by  it,  even  if  it  is  founded  on  a  perfect  consideration. 


On  final  hearing  on  bill,  answers  and  proofs,  taken  before  the 
vice-chancellor. 

Mr.  Joseph  P.  Osborne,  for  complainant. 

Mr.  John  Schomp,  for  defendants. 

The  Vice-Chancellor. 

This  is  a  foreclosure  suit.  No  defence  is  made  by  the  owner 
of  the  equity  of  redemption,  but  two  judgment  creditors  of  the 
mortgagor  attack  the  validity  of  the  complainant's  mortgage. 
They  say,  first,  that  the  mortgage  is  without  consideration,  and 
should,  for  that  reason,  be  set  aside;  and,  second,  that  if  it  is 
founded  on  a  valid  consideration,  it  was  executed  for  the  pur- 
pose of  defrauding  them,  and  is  therefore  void  as  to  them.  The 
second  ground  is  the  only  one  I  shall  consider. 

The  defendants  must  be  considered  creditors  from  the  date  of 
the  contracts  under  which  their  claims  arose,  namely,  from  Feb- 
ruary 25th^  1875.  The  rule  upon  this  subject,  as  laid  down  in 
another  case,  is  this :  Any  one  liable  upon  a  contract,  express  or 
implied,  though  only  contingently,  is  a  debtor,  within  the  mean- 
ing of  the  statute  of  frauds,  from  the  date  of  his  contract.  Post 
V.  Stige)',  2  Slew.  Eq.  554- 

The  defendants  were  not  bound  to  show,  as  preliminary  to 
their  right  to  seek  the  aid  of  this  court,  that  executions  had  been 
issued  upon  their  judgments  and  returned  unsatisfied.  All  that 
a  judgment  creditor  need  do,  who  seeks  the  aid  of  a  court  of 
equity  against  the  real  estate  of  his  debtor,  is  to  show  a  judg- 
ment at  law  creating  a  lien  on  such  estate.  Under  our  statute  a 
judgment  is  a  lien  on  lands  from  its  recovery.  But  if  a  creditor 
wants  the  aid  of  the  court  in  respect  to  the  personal  estate  of  his 
debtor,  he  must  show,  not  only  a  judgment,  but  that  an  execu- 


140  CASES  IN  CHANCERY.  [33  Eq. 

Schmidt  v.  Opie  and  Eeimer. 

tion  has  been  issued.  A  judgment  does  not  bind  personal  estate ; 
such  property  can  only  be  reached  by  an  execution.  Robert  v. 
Hodges,  1  C.  E.  Gr.  £99. 

The  question  of  fact  presented  by  the  case  is  this:  Was  the 
mortgage  executed  with  intent  to  defraud  the  defendants,  and, 
if  so,  was  the  mortgagee  a  party  to  the  fraud  ?  The  mortgage 
was  made  by  one  brother  to  another — by  John  Schmidt  to 
Charles  Schmidt — and  bears  date  March  1st,  1875,  but  was  not 
acknowledged  until  March  5th.  Prior  to  the  making  of  the  mort- 
gage, John  Schmidt  had  agreed  to  convey  the  mortgaged  prem- 
ises to  the  defendant  Opie,  and  Opie's  judgment  is  founded  on  a 
breach  of  that  contract.  The  contract  bears  date  February  25th, 
1875,  and  required  John  to  make  a  deed  to  Opie  on  the  10th  of 
the  following  month.  By  that  contract,  Opie  became  the  owner, 
in  equity,  of  the  mortgaged  premises.  It  is  a  fundamental  rule 
of  equity  jurisprudence,  that  upon  an  agreement  for  the  sale  of 
land,  the  purchaser  becomes  the  owner  of  the  land,  and  the  vendor 
becomes  the  owner  of  the  purchase-money.  The  contract  creates 
a  trust.  By  force  of  it,  the  vendor  becomes  trustee  of  the  legal 
estate  for  the  vendee,  and  the  vendee  becomes  trustee  of  the  pur- 
chase-money for  the  vendor.  If  the  vendor  conveys  the  land  to 
another,  and  his  grantee  takes  title  with  notice  of  the  prior  con- 
tract, he  will  take  the  land  subject  to  a  trust  in  favor  of  the  first 
purchaser,  who  may  compel  a  conveyance  of  it.  Haughivout  v. 
3Iurphy,  7  C.  E.  Or.  531. 

Charles  Schmidt  took  his  mortsjao-e  with  full  notice  of  the 
Opie  contract,  and  that  John  wanted  to  escape  the  performance 
of  it.  The  complainant  is  the  wife  of  John  Schmidt,  the  mort- 
gagor. She  says  that  it  was  arranged  originally  that  Charles  was 
to  take  a  mortgage  on  the  Opie  farm — by  the  contract,  Opie  was 
to  convey  a  farm  to  John  in  exchange  for  the  mortgaged  prem- 
ises— but  when  he  found  that  Opie  intended  to  cheat  John,  he 
demanded  a  mortgage  on  the  mortgaged  premises.  It  also  ap- 
pears from  the  complainant's  evidence  that  John  had  made  up 
his  mind,  on  the  very  day  he  signed  the  contract,  not  to  perform 
it.  She  says  he  told  her,  on  his  return  from  Somerville  the  day 
the  contract  was  signed,  that  he  had  heard  that  there  was  another 


6  Stew.]  OCTOBER  TERM,  1880.  141 

Schmidt  v.  Opie  and  Eeimer. 

mortgage  ou  the  farm  besides  the  oue  Opie  had  told  him  about, 
and  that  he  had  made  up  his  mind  not  to  take  the  farm.  John 
says  that  he  had  told  Charles,  before  Charles  asked  him  to  give 
a  mortgage,  that  he  had  made  a  contract  to  convey  the  mortgaged 
premises  to  Opie,  and  tiiat  the  object  of  his  visit  to  Charles,  when 
he  gave  him  this  information,  was  to  see  what  he  could  do  to 
satisfy  Charles  for  what  he  owed  him. 

These  facts  render  it  perfectly  clear,  I  think,  that  Charles 
knew,  when  it  was  arranged  that  the  mortgage  should  be  given, 
that  John  had  agreed  to  convey  the  mortgaged  premises  to  Opie, 
and  that  he  did  not  mean  to  keep  his  contract.  Charles  also 
knew  that  the  execution  of  the  mortgage  to  him  would  put  it 
out  of  John's  power  to  perform  his  contract.  That,  undoubtedly, 
was  the  object  that  both  intended  to  accomplish  by  the  mortgage. 
It  is  practically  confessed. 

This  rendered  the  mortgage  an  instrument  of  fraud,  and  made 
it  utterly  void  against  those  who  were  defrauded  by  it.  The 
fact  that  it  was  founded  on  a  full,  valuable  consideration,  will 
not  save  it.  Such  an  instrument  may  be  even  more  effectual  as 
a  means  of  fraud  than  a  mortgage  without  consideration.  A 
mortgagee,  to  be  able  to  successfully  resist  the  impeachment  of 
his  security,  must  appear  to  be  not  only  a  mortgagee  for  value, 
but  a  mortgagee  in  good  faith.  If  it  appears  that  his  mortgagor 
executed  the  mortgage  for  a  fraudulent  purpose,  and  that  he 
knew  of  such  purpose,  and  took  the  mortgage  to  aid  him  in  its 
execution,  his  mortgage  is  void  against  those  who  are  defrauded 
by  it,  even  if  it  is  founded  on  a  perfect  consideration.  Green  v. 
Tantum,  J,,  C.  E.  Gh'.  105;  S.  C.  on  appeal,  6  C.  K  Ch\  S64,. 

The  conduct  of  the  parties  furnishes  very  important  evidence, 
and  leaves  no  doubt  with  what  intent  they  planned  the  execution 
of  this  mortgage.  The  debt  which  it  is  alleged  the  mortgage 
was  given  to  secure,  had  been  standing  a  long  time — part  of  it 
since  1865,  and  all  of  it  since  1869.  It  had  been  incurred  in 
sums  of  from  $25  to  $1,350.  No  evidence  of  indebtedness  of 
any  kind  is  shown  to  have  been  given  or  made.  No  payment 
of  either  principal  or  interest  was  ever  made;  and  although  the 
debtor  borrowed  $1,500  on  mortgage  on  these  very  premises, 


142  CASES  IN  CHANCERY.  [33  Eq. 

Schmidt  V.  Opie  and  Reimer. 

and  deposited  the  money  in  a  savings  bank,  and  kept  it  there  a 
long  time,  with  the  knowledge  of  the  creditor,  yet  the  creditor 
never  asked  for  payment,  nor  did  the  debtor  offer  to  pay.  As 
soon  as  the  mortgage  was  delivered,  the  mortgagee  made  a  gift 
of  it  to  the  mortgagor's  wife.  The  mortgage,  though  dated 
March  1st,  1875,  was  not  acknowleged  until  March  5th.  The 
assignment  to  the  complainant  is  dated  March  5th,  1875,  so  tiiat 
it  would  seem  the  only  object  the  mortgagee  could  have  had  in 
getting  security  for  his  debt  was  to  present  the  security  to  his 
debtor's  wife.  His  gift  shows  that  he  did  not  want  security  for 
his  own  protection.  Why  did  he  not  give  her  the  debt,  and  let 
her  get  it  secured  or  not,  as  she  thought  proper?  That,  it  seems, 
would  have  been  the  course  which  would  have  been  pursued  if 
it  had  not  been  intended  that  the  mortgage  should  help  the 
mortgagor  escape  the  performance  of  his  contract. 

Besides,  I  find  it  very  difficult  to  believe  that  this  mortgage 
ever  had  any  real  consideration.  Charles  may  have  given  John 
money  at  various  times ;  the  several  sums  thus  given  may  have 
aggregated  a  large  sum ;  but  was  it  understood,  as  the  moneys 
were  advanced,  that  the  relation  of  creditor  and  debtor  existed ; 
and  were  the  moneys  advanced  with  an  expectation  of  payment, 
on  one  side,  and  an  intention  to  pay,  on  the  other?  Chai'les 
was  prosperous  and  wealthy,  and  without  children ;  John  had 
but  little  property  and  a  large  family.  Charles  took  nothing  to 
show  for  the  money  advanced,  and  so  far  as  appears,  he  made  no 
charge  of  it.  His  advances  or  gifts  extended  over  a  period  of 
four  or  five  years,  but  no  payments  were  made,  though  Charles 
knew  John  had  on  deposit  in  bank  the  sura  of  $1,500.  At  any 
time  between  1869  and  1875,  John  could  have  given  Charles 
the  same  security  that  he  gave  him  in  March,  1875 ;  but  neither 
party  seems  to  have  regarded  the  advances  as  a  debt  until  John 
got  into  trouble,  and  then  they  were  treated  as  a  debt,  and  a 
mortgage  was  given  for  them,  Nvhich  was  immediately  transferred 
to  John's  wife  as  a  gift.  These  facts  furnish  very  cogent  evidence 
to  my  mind  that  if  John  had  not  got  into  trouble,  no  mortgage 
would  have  been  given  and  no  debt  claimed.  The  proofs  con- 
vince me  that  Charles's  object  in  taking  the  mortgage  was  to  help 


6  Stew.]  OCTOBER  TERM,  1880.  143 

Budd  V.  Van  Orden. 

John  escape  the  performance  of  his  contract  with  Opie.  Their 
fraud  was  aimed  directly  at  him,  and  he  has  a  clear  right  to 
redress  against  it. 

The  mortgage  must  be  declared  void  aa  to  the  defendants, 
Opie  and  Reimer,  but  good  as  to  the  other  parties.  This  result 
simply  affects  the  order  in  which  the  liens  against  the  mortgaged 
premises  must  be  paid.  The  mortgaged  premises  will  be  ordered 
to  be  sold,  and  the  proceeds  of  sale  must  be  first  applied  in  sat- 
isfaction of  the  judgments  of  Opie  and  Reimer,  and  their  costs 
in  this  court,  and  then  to  the  payment  of  the  complainant's 
mortgage. 


Nelson  L.  Budd 

V. 

John  A.  Van  Oeden. 

1.  In  determining  the  question  whether  a  deed,  absolute  on  its  face,  is  what 
it  purports  to  be,  or  a  mortgage,  the  fact  that  the  parties,  after  the  execution 
of  the  deed,  still  understood  that  the  relation  of  creditor  and  debtor  continued, 
in  respect  to  the  debt  on  which  the  deed  is  founded,  must  generally  be  regarded 
as  decisive  in  showing  that  the  instrument  was  intended  to  be  a  mortgage. 

2.  The  only  infallible  test  of  the  value  of  a  merchantable  article  is  what  it 
is  actually  sold  for  at  a  fair  sale. 

3.  A  mortgagee  in  possession,  holding  under  a  deed  absolute  on  its  face,  who 
Bells  the  mortgaged  premises,  is  bound  to  account  to  his  mortgagor  at  the  price 
at  which  he  sold,  though  he  may  be  able  to  show,  by  the  opinion  of  competent 
judges,  that  such  price  is  in  excess  of  their  market  value. 


On  final  hearing  on  bill,  answer  and  proofs. 
Mr.  Joseph  CouU,  for  complainant. 
Mr.  J.  S.  Salmon,  for  defendant. 


144  CASES  IN  CHANCERY.  [33  Eq. 

Budd  V.  Van  Orden. 

The  Vice-chancellor. 

The  principal  object  of  this  suit  is  to  have  a  deed,  absolute  on 
its  face,  declared  to  be  a  mortgage.  The  parties  are  brothers-in- 
law.  The  deed,  which  it  is  sought  to  chauge  to  a  mortgage,  was 
made  in  August,  1870,  and  conveyed  the  whole  of  the  complain- 
ant's interest  in  his  father's  estate.  At  the  date  of  the  deed, 
his  father,  Barney  Budd,  had  been  dead  about  three  years. 
When  the  deed  was  made  the  complainant  resided  in  the  west, 
but  some  weeks  prior  to  its  execution  had  come  to  New  Jersey 
to  raise  money  on  his  share  in  his  father's  estate.  He  returned 
to  the  west  very  soon  after  the  deed  was  executed.  The  first 
transaction  between  the  parties,  it  is  admitted,  was  a  loan.  The 
defendant  agreed  to  loan  the  complainant  $500,  to  be  secured  by 
a  mortgage  on  his  interest  in  his  father's  estate,  and  a  policy  on 
his  life  for  $1,000.  The  mortgage  was  executed  and  the  policy 
procured,  and  both  delivered  to  the  defendant  in  June,  1870. 
The  defendant  still  held  the  mortgage  at  the  time  of  the  trial, 
but  he  surrendered  the  policy  after  $128  in  premiums  had  been 
paid  upon  it,  and  received,  as  its  surrender  value,  the  sum  of  $18. 
The  deed  purports,  upon  its  face,  to  have  been  made  for  a  con- 
sideration of  $900.  It  is  not  disputed  that  this  sum  was  handed 
by  the  defendant  to  the  complainant,  nor  that  $400  of  it  was 
immediately  handed  back  to  the  defendant's  wife,  for  which  she 
gave  the  complainant  her  note.  The  defendant  insists  that  the 
deed  was  made  in  execution  of  an  actual  purchase,  and  that  the 
$900  passed  to  the  complainant  was  passed  in  payment  of  the 
sum  agreed  upon  as  the  purchase- money,  and  that  the  $400 
handed  to  his  wife  was  a  deposit  he  required  the  complainant  to 
make,  as  a  condition  of  his  purchase,  to  answer  a  claim  made  by 
the  executors  of  Barney  Budd  against  the  complainant,  the  amount 
of  which  was  then  undetermined.  But  the  defendant  admits 
that  on  the  delivery  of  the  deed  it  was  understood  that  he  should 
continue  to  hold  the  policy  as  security.  He  says  the  arrange- 
ment was  this :  that  he  should  keep  the  policy  alive,  and  if  he 
did  not  succeed  in  selling  the  interest  which  he  had  purchased  of 
the  complainant  for  what  he  had  paid  for  it,  and  the  complain- 
ant should  die,  he  was  to  have  the  right  to  retain,  out  of  the  sum 


6  Stew.]  OCTOBER  TERM,  1880.  145 

Budd  V.  Van  Orden. 

received  on  the  policy,  tiie  premiums  he  had  paid,  and  also  any 
loss  he  might  have  sustained  on  the  sale  of  the  complainant's 
interest,  and  that  the  balance,  if  any,  should  be  paid  to  the  com- 
plainant's family.  The  complainant,  on  the  contrary,  alleges 
that  after  the  mortgage  and  policy  were  delivered,  the  defendant 
became  apprehensive  that  difficulty  might  arise  out  of  the  claim 
made  by  the  executors  against  the  complainant,  and  his  security 
in  consequence  might  prove  insufficient.  He  says  that  the  de- 
fendant then  suggested  that  a  deed  would  give  him  a  better  secu- 
rity for  his  loan,  and  put  him  in  a  position  where  he  could  deal 
much  more  advantageously  in  arranging  the  claim  of  the  execu- 
tors ;  that  he  could  then  represent  that  he  had  purchased  and 
paid  for  the  complainant's  interest,  and  thus  constrain  the  ex- 
ecutors to  make  a  fair  settlement.  He  says  he  yielded  to  this 
suggestion,  and  consented  to  execute  a  deed  for  the  purpose  of 
giving  the  defendant  a  more  perfect  security  for  his  loan. 

I  think  it  is  conclusively  shown  that  the  deed  was  not  given  or 
intended  as  an  absolute  conveyance,  but  as  a  security.  The 
proof  on  this  point  furnished  by  the  defendant's  letters,  is  so  de- 
cisive that  the  defendant's  counsel  but  faintly  questioned  that 
such  must  be  the  determination  of  the  court.  The  defendant, 
on  the  2d  of  August,  1871,  sent  to  the  complainant  a  release, 
to  be  executed  by  him  to  the  executors  of  his  father's  will.  By 
Barney  Budd's  will,  his  executors  were  directed  to  convert  nearly 
the  whole  of  his  estate  into  money,  and  divide  it  equally  among 
his  eleven  children.  In  the  letter  accompanying  this  release,  the 
defendant  said : 

"  I  hare  made  the  amount  in  the  release  to  correspond  with  the  deed,  but  I 
will  make  this  right  in  our  final  settlement." 

In  a  letter  written  to  the  complainant  August  Uth,  1871,  the 

defendant  says : 

"I  will  not  have  time,  before  the  mail  closes,  to  give  you  a  detailed  accoimt 
of  the  whole  thing,  but  will  try  and  make  a  plain,  short  statement  of  things  as 
they  are.  And  first  I  would  say  I  regret  that  I  have  not  kept  you  more  fully 
posted,  but  one  reason  is,  that  when  the  question  was  asked  me  whether  I  had 
bought  you  out,  I  said '  Yes ; '  and  of  course  had  to  maintain  and  look  after 
that  interest." 

10 


146  CASES  IN  CHANCERY.  [33  Eq. 

Budd  V.  Van  Orden. 

In  a  letter  dated  September  8th,  1871,  he  says: 

"  If  you  will  fill  out  and  send  on  that  release,  I  will  send  the  balance  to  make 
your  share  equal  with  the  rest,  and  I  will  do  more  if  I  do  well  with  the  place. 
*  *  *  I  do  not  remember  whether  the  interest  runs  from  the  time  the 
mortgage  was  made,  June  13th,  or  from  the  time  the  deed  was  made,  August 
20th;  perhaps  you  ^vill  recollect,  and  can  see  what  it  amounts  to." 

And  in  a  letter  dated  January  9th,  1872,  he  says : 

"I  answered  your  letter  in  regard  to  your  interest  in  the  old  place.  *  *  * 
I  sometimes  regret  that  I  had  anything  to  do  with  it,  especially  that  part  of  it, 
as  it  places  me  in  rather  an  unenviable  light.  The  question  was  asked  me 
whether  I  had  bought  the  interest  in  good  faith ;  I  said  *  Yes.'  They  asked 
me  to  get  a  release,  which  I  agreed  to  do." 

When  asked  to  explain  portions  of  these  letters,  so  as  to  make 
their  statements  correspond  with,  or  not  to  antagonize  his  present 
contention,  the  defendant  stood  dumb  before  the  question,  simply 
saying,  "  I  do  not  know  what  it  means ;  I  cannot  explain  it." 
It  is  quite  impossible,  I  think,  to  read  these  letters  without  being 
convinced  that  the  defendant  clearly  understood  that  the  com- 
plainant still  had  an  interest  in  the  "  old  place,"  and  that  both 
parties  understood  that  the  relation  of  debtor  and  creditor  still 
subsisted  in  respect  to  the  loan.  This  latter  fact  is,  of  itself,  de- 
cisive as  to  the  character  of  the  deed.  Judge  v.  Reese,  9  C.  E. 
Gr.  387.     The  deed  must  be  declared  to  be  a  mortgage. 

The  defendant,  subsequent  to  the  conveyance  made  to  him  by 
the  complainant,  obtained  conveyances  from  all  the  other  children 
of  Barney  Budd,  so  that  he  acquired  title  to  the  whole  farm. 
He  sold  it,  in  June,  1875,  for  $20,000.  The  complainant  now 
insists  that  he  shall  account  to  him  at  that  valuation,  while  the 
defendant  says  that  he  is  only  bound  to  account  for  its  actual 
value.  Tiie  defendant  further  says  that  he  sold  the  farm  for  a 
sum  greatly  in  excess  of  its  actual  value,  in  consequence  of  the 
liberal  terms  of  payment  he  gave;  that  he  has  not  as  yet  col- 
lected the  whole  of  the  purchase-money,  and  that  the  part  re- 
maining unpaid  cannot  be  made  out  of  the  property.  The  only 
absolute  test  we  can  have  of  the  value  of  a  merchantable  article 
is  what  it  has  been  sold  for  at  a  fair  sale.     All  other  means  of 


6  Stew.]  OCTOBER  TERM,  1880.  147 

Budd  V.  Van  Orden. 

ascertaining  the  value  of  a  merchantable  commodity  are  specu- 
lative, and  must,  to  a  greater  or  less  extent,  be  uncertain.  A  sale 
is  a  demonstration  of  the  fact,  while  estimates,  even  by  the  best 
judges,  are  simply  matters  of  opinion,  which,  at  best,  are  only 
approaches  to  the  fact.  The  sale  in  this  case,  I  think,  con- 
clusively settled  the  value  of  the  farm  as  between  these  parties. 
The  defendant  does  not  pretend  that  he  obtained  an  exorbitant 
price  by  illegal  means.  If  he  did,  it  would  do  him  no  good. 
He  would  not  be  heard  to  set  up  his  own  fraud  to  escape  liability. 
He  made  the  sale,  and  agreed  upon  such  terms  of  payment  as  he  was 
willing  to  accept,  and  took  such  security  for  the  purchase-money 
as  he  thought  proper.  His  conveyance  of  the  complainant's  in- 
terest is  valid  against  the  complainant.  There  is  nothing  in  the 
case  which  will  justify  even  a  suspicion  that  the  defendant's  pur- 
chaser took  title  with  notice  of  the  complainant's  rights.  Having 
made  a  conveyance  which  is  effectual  against  the  complainant,  in 
passing  his  rights  for  a  certain  price,  I  think  it  is  clear,  upon  the 
plainest  principles  of  justice,  that  he  is  bound  to  account  to  the 
complainant  at  the  price  at  which  he  sold  his  interest.  He  occu- 
pies the  position  of  a  trustee,  and  cannot  trade  on  his  trust.  He 
cannot  sell  at  one  price  and  account  to  his  cestui  que  trust  for  a 
less  price.  Besides,  there  is  nothing  before  the  court  which  tends 
to  show  that  the  defendant  will  not  be  able  to  enforce  payment  of 
every  penny  of  the  purchase-money  remaining  unpaid.  He  took 
a  mortgage  for  part.  He  doubtless  also  took  the  mortgagor's 
bond.  To  take  such  evidence  of  the  debt  secured  by  the  mort- 
gage is  the  universal  practice.  In  the  absence  of  direct  proof 
to  the  contrary,  it  must  be  assumed  that  the  parties  to  this  trans- 
action transacted  their  business  as  such  business  is  usually  done, 
and  that  the  defendant  acted  with  ordinary  prudence  and  caution. 
No  attempt  has  been  made  to  show  that  the  obligor  of  the  bond 
is  insolvent,  or  that  the  money  for  which  it  was  given  cannot  be 
collected  by  due  course  of  law.  In  this  posture  of  affairs,  I  think 
the  court  is  bound  to  assume  that  the  bond  is  a  valid  and  avail- 
able instrument.  That  being  so,  the  defendant  is  bound,  as  a 
matter  of  simple  honesty,  to  pay  the  complainant  for  his  interest 
in  the  farm  at  the  rate  at  which  he  sold  it.  A  decree  in  con- 
formity to  this  opinion  has  been  advised. 


148  CASES  IN  CHANCERY.  [33  Eq. 

Skean  v.  Skean, 

Kate  Skean 
Benjamin  F.  Skean. 


1.  If  a  husband  drives  his  wife  away,  or  treats  her  so  brutally  as  to  compel 
her  to  flee  for'  safety,  or  is  so  cruel  and  malignant  towards  her  as  to  show 
that  he  means  to  force  her  from  his  home,  though  she  leaves  the  matrimonial 
habitation,  he,  in  law,  deserts  her. 

2.  But  a  mere  failure  by  a  husband  to  furnish  his  wife  with  sufficient  sup- 
port is  not  a  ground  of  divorce,  nor  will  he  be  considered  a  deserter  if  she 
leaves  him  for  that  cause. 

3.  So  long  as  a  husband  shares  with  his  wife  whatever  means  of  support  he 
may  have,  the  law  makes  it  her  duty  to  abide  with  him ;  and  if  she  leaves 
him  because  he  does  not  give  her  as  much  or  as  good  as  she  desires,  or  as  may 
be  necessary,  the  law  considers  her  a  deserter. 


On  petition  for  divorce  for  desertion. 

Heard  on  proofs  taken  ex  parte,  and  report  of  Special  Master 
Levi  T.  Hannum,  reporting  in  favor  of  decree  for  petitioner. 

Mr.  F.  Kingman,  for  petitioner. 

The  Vice-Chancelloe. 

This  is  a  suit  by  a  wife  for  divorce.  The  ground  is  desertion. 
The  husband  makes  no  defence.  The  desertion  is  alleged  to  have 
commenced  May  10th,  1877.  The  petition  was  sworn  to  on  May 
15th,  1880,  and  filed  two  days  afterwards.  The  period  inter- 
vening between  the  time  when  it  is  alleged  the  desertion  began 
and  the  date  on  which  the  petition  was  filed  is  three  years  and 
seven  days. 

The  proofs,  in  my  judgment,  utterly  fail  to  make  a  case  against 
the  defendant.  On  the  contrary,  I  think  they  make  a  much 
stronger  case  against  the  petitioner  than  they  do  against  her  hus- 
band. 


6  Stew.]  OCTOBER  TERM,  1880.  149 

Skean  v.  Skean. 

The  parties  were  married  in  Trenton,  on  the  10th  of  October, 
1875,  and  soon  afterwards  took  up  their  residence  in  the  city  of 
Philadelphia,  where  they  continued  to  reside  together  until  May 
10th,  1877.  The  defendant  is  a  poor  man;  he  is  represented  to 
be  also  idle  and  thriftless.  The  petitioner  gave  birth  to  a  child 
in  Februaiy,  1877.  She  says  the  provision  made  by  her  husband 
for  her  support  and  comfort,  during  her  confinement  and  after- 
wards, was  very  inadequate.  Whether  it  was  the  best  her  hus- 
band's means  could  provide,  she  does  not  state.  After  her  con- 
finement, she  says,  she  became  sick  and  feeble,  and  continued  so 
for  some  time,  and  at  last  wrote  to  her  father,  informing  him  of 
her  condition,  who,  with  her  mother,  came  to  see  her  on  the  lOtli 
of  May,  1877.  As  this  is  the  date  when  she  charges  that  her 
husband  began  the  desertion  which  entitles  her  to  a  divorce,  it  is 
quite  proper  that  she  should  be  allowed  to  describe  what  occurred, 
in  her  own  way.     She  says : 

"  My  parents  proposed  that  I  should  return  with  them  to  Trenton ;  my  hus- 
band made  no  objection,  and  they  took  me  with  them  to  Trenton,  where  I  have 
remained  ever  since ;  *  *  *  I  took  my  child  with  me;  my  father  paid  the 
railroad  fare ;  at  the  same  time  I  removed  my  furniture  and  household  articles 
that  my  father  and  mother  had  given  to  me ;  my  father  removed  them  and 
paid  the  transportation ;  my  husband  was  present  when  I  left  and  when  the 
goods  were  removed,  but  made  no  objection." 

There  is  certainly  nothing  in  the  occurrence  here  described 
which  furnishes  any  evidence  whatever  of  either  a  jiurpose,  or 
even  a  desire,  on  the  part  of  the  husband,  to  desert  his  wife.  She 
was  feeble  and  sick,  and  her  parents  expressed  a  desire  to 
take  her  to  their  home,  where  she  could  have  a  mother's  care, 
and  her  husband  made  no  objection  to  her  going.  Why  should 
he  have  opposed  such  a  thing?  To  have  given  even  a  reluctant 
consent  might  very  well,  under  the  circumstances,  have  been 
regarded  as  conjugal  unkiudness.  His  failure  to  object  certainly 
does  not  afford  the  least  evidence  of  desertion.  But  what  did 
the  wife's  conduct  indicate  ?  What  was  her  purpose  in  removing 
all  her  household  effects  ? 

She  desires  it  understood  she  simply  went  on  a  visit,  with  no 
thought  of  desertion  in  her  mind ;  but  she  went  exactly  in  the 


150  CASES  IN  CHANCERY.  [33  Eq. 

Skean  v.  Skean. 

manner  a  wife  would  go  who  had  determined  to  leave  her  hus- 
band forever.  She  removed  everything  she  had  contributed  to 
make  their  dwelling-place  a  home.  Whatever  may  have  been 
her  purpose,  there  can  be  no  doubt  that  her  conduct  wore  a 
strong  appearance  of  desertion.  She  assigns  no  cause  for  her 
extraordinary  course,  nor  does  she  attempt  to  justify  or  explain 
it.  What  seems  to  me  still  more  decisive  is  the  fact  that  she 
never  returned  to  her  husband. 

But  he  went  to  see  her.  The  petitioner  says  the  next  week 
after  she  went  to  her  father's  house,  her  husband  came  there  to 
see  her,  and  remained  about  two  hours ;  that  she  saw  him  in  the 
back  parlor,  in  the  presence  of  her  father  and  her  mother,  but 
that  he  did  not  ask  her  to  leave  them  and  go  with  him.  This 
visit  was  made  in  the  evening.  It  does  not  appear  that  either 
wife  or  parents  invited  the  defendant  to  spend  the  night  with  the 
petitioner.  The  defendant  made  a  second  visit  a  few  days  after- 
wards. The  petitioner  says  she  saw  him  on  this  occasion  in  the 
same  room  ;  that  he  did  not  ask  her  to  go  with  him,  but  she  told 
him  that  whenever  he  was  ready  to  provide  her  with  a  home, 
even  if  it  was  only  two  rooms,  she  was  ready  to  go  with  him. 
She  says  he  made  no  reply.  The  parties  did  not  meet  again,  so 
far  as  the  evidence  shows,  until  September,  1877.  The  defend- 
ant then  went  to  his  father-in-law's  house,  in  company  with  a 
police  officer.  The  petitioner  gives  the  following  description  of 
that  visit : 

"  My  mother  met  them  at  the  door,  then  called  me ;  when  I  went  to  the 
door,  mv  husband  did  not  speak,  but  the  ofl5cer  asked  if  I  was  this  man's  wife  ; 
I  said  I  was ;  the  officer  then  said, '  He  wishes  to  see  you ; '  I  said, '  Very  well, 
I  am  here ; '  my  husband  did  not  look  up  or  speak  to  me ;  I  then  told  the 
officer  why  I  was  at  my  father's — that  my  husband  had  not  provided  for  me 
when  I  lived  with  him,  and  my  father  had  brought  me  home  because  I  was 
sick  and  had  nothing  to  eat ;  the  officer  then  said,  '  Well,  that  is  a  different 
story ; '  they  then  went  away ;  my  husband  did  not  contradict  anything  I  said ; 
I  do  not  know  why  my  husband  brought  an  officer  with  him ;  they  did  not 
disclose  any  reason  for  this  singular  visit." 

The  petitioner  does  not  seem,  at  the  time,  to  have  been  at  all 
curious  or  inquisitive  about  the  matter;  she  asked  neither  the 


6  Stew.]  OCTOBER  TERM,  1880.  151 

Skean  v.  Skean, 

oflQ.cer  nor  her  husband  why  the  officer  was  there,  nor  what  was 
the  object  of  their  visit. 

This  is  the  petitioner's  whole  case.  As  already  remarked,  the 
evidence  utterly  fails  to  make  a  case  of  desertion.  I  believe, 
moreover,  the  court  has  not  the  whole  truth.  I  believe  it  is  im- 
possible for  any  one  at  all  acquainted  with  human  conduct  to 
read  the  petitioner's  evidence  without  seeing  quite  plainly  that 
the  descriptions  given  of  what  occurred  when  she  left  her  hus- 
band, and  also  of  what  occurred  on  the  occasions  of  his  visits, 
are  very  incomplete  and  imperfect.  She  may  have  intended  to 
tell  everything,  but  if  such  was  her  purpose,  it  is  apparent  she 
remembered  but  little  besides  what  she  understood  to  be  her 
wrongs.  But  if  we  take  her  testimony  as  presenting  the  whole 
truth,  her  case  is  merely  this  :  She  left  her  husband  and  went  to 
her  father's  house,  because  her  husband  did  not  furnish  her  with 
sufficient  food  and  proper  care.  It  does  not  appear  that  he  did 
not  do  for  her  the  best  he  could,  or  that  he  refused  to  share  with 
her  such  means  of  support  as  he  had.  He  failed  to  support  her, 
and  she  left  him.  He  did  not  refuse  to  allow  her  to  share  with 
him  in  whatever  he  had.  Her  separation  from  him,  for  this 
cause,  was  not  a  desertion  by  him.  It  is  true,  it  is  not  always  the 
one  who  leaves  the  matrimonial  habitation  that  is  the  deserter. 
The  husband  may  drive  his  wife  away,  or  he  may  treat  her  so 
brutally  as  to  compel  her  to  flee  for  safety,  or  his  conduct  may 
be  so  cruel  and  malignant  as  to  show  that  he  means  to  force  her 
away.  If  a  wife,  for  either  of  these  causes,  separates  herself 
from  her  husband,  and  he  allows  her  to  remain  away  for  the 
statutory  period,  without  professing  sorrow  for  his  violations  of 
conjugal  duty,  and  promising  to  amend  his  conduct,  and  asking 
her  to  return,  he,  in  the  eye  of  the  law,  is  the  deserter,  and  she 
has  a  right  to  ask  for  a  dissolution  of  the  marriage  tie.  But  a 
mere  failure  by  a  husband  to  furnish  his  wife  a  sufficient  sup- 
port' is  not  a  ground  of  divorce ;  nor  will  he  be  considered  a 
deserter  if  she  leaves  him  for  that  cause.  So  long  as  he  shares 
with  her  whatever  means  of  support  he  may  have,  the  law  makes 
it  her  duty  to  abide  with  him ;  if  she  leaves  him  because  he 
cannot  give  her  as  much  or  as  good  as  she  desires  or  as  may  be 


152  CASES  IN  CHANCERY.  [33  Eq. 

Jolinson  V.  Somerville. 

necessary,  she  is  the  deserter,  and  not  he.  The  law  upon  this 
subject  is  settled.  Chancellor  Zabriskie  in  Palmer  v.  Palmer, 
7  a  E.  Gr.  88,  said  : 

"  There  is  no  rule  that  makes  want  of  sufficient  support  by  a  husband,  or 
total  want  of  support,  a  desertion  of  his  wife.  It  is  no  cause  for  divorce,  and 
the  court  cannot,  by  construction,  convert  it  into  a  ground  of  divorce  by  call- 
ing it  desertion.  *  *  *  By  marriage,  a  wife  agrees  to  share  the  fortunes 
of  her  husband,  in  poverty  and  sickness,  as  well  as  in  affluence  and  health. 
She  may  be  obliged  to  aid  him  in  her  own  support,  and  still  be  bound  to  ad- 
here to  him.  And  she  is  not,  because  he  is  poor  and  her  lot  uncomfortable, 
justified  in  leaving  him  and  betaking  herself  to  the  luxuries  of  the  home  of 
her  father.  Much  less  can  she  convert  an  unwarranted  abandonment  of  her 
husband  into  a  desertion  by  him.'' 

The  same  doctrine  was  enunciated  in  Laing  v.  Laing,  6  C  E. 
Gr.  2Jt8. 

The  petition  must  be  dismissed. 

This  case  was  decided  some  time  ago,  by  a  simple  statement 
that  the  proofs  did  not  establish  a  case  of  desertion.  Counsel 
thereupon  requested  to  be  informed  of  the  reasons  for  this  con- 
clusion, in  order  that  he  might  determine  what  course  it  was 
proper  for  him  to  pursue.  This  opinion  presents  the  reasons 
upon  which  the  judgment  of  the  court  rests. 


Theodore  Johnson  et  al. 

x\ 

The  Board  of  Commissioners  of  Somerville. 

1.  Great  delay  in  seeking  relief  is  a  good  bar  to  a  suit  for  specific  perform- 
ance. 

2.  Sixty  years'  delay  constitutes  a  bar.  . 

3.  A  suitor  asking  a  court  of  equity  to  give  him  the  benefit  of  the  exercise 
of  its  discretionary  power,  must  show  a  good  conscience,  good  faith,  and  rea- 
sonable diligence. 


On  demurrer. 


6  Stew.]  OCTOBER  TERM,  1880.  153 

Johnson  v.  Somerville. 
Mr.  James  J.  Bergen,  for  demurrant. 
Mr.  S.  B.  Ransom,  for  complainants. 

The  Yice-Chancellok. 

This  case  may  be  decided  by  the  application  of  a  familiar  rule. 
The  bill  asks  for  specific  performance  of  a  contract  to  convey 
lands,  made  June  14th,  1809,  and  which,  by  its  terms,  was  to  be 
performed  on  or  before  the  1st  of  April,  1810.  This  suit  was 
commenced  December  23d,  1873,  over  sixty-four  years  after  the 
contract  was  made,  and  over  sixty -three  years  after  breach,  if  any 
ever  occurred.  The  complainants  claim  as  devisees  of  the  vendee. 
He  died  March  12th,  1828,  and  the  vendor  died  September  6th, 
1830,  so  that  the  complainants  slept  upon  their  rights  over  forty- 
five  years  after  they  had  a  right  to  sue.  Their  ancestor  had  pre- 
viously slept  for  a  period  of  nearly  eighteen  years. 

The  remedy  by  sjiecific  performance  is  discretionary.  The 
question  in  such  cases  is  not  what  must  the  court  do,  but  what, 
in  view  of  all  the  circumstances  of  the  case  in  judgment,  should 
it  do  to  further  justice.     Plummet-  v.  Keppler,  11  C.  E.  Gh\  JfS'2. 

Great  delay  in  seeking  relief  is  a  good  bar  to  any  suit  in  equity. 
It  is  very  difficult,  in  most  cases,  to  get  full  and  trustworthy  evi- 
dence respecting  a  disputed  transaction  which  occurred  twenty 
years  before  it  is  brought  under  judicial  investigation,  and  in  a 
case  where  sixty  years  have  elapsed  it  would  be  a  marvel  if  it 
were  not  entirely  impossible. 

With  regard  to  delay  in  seeking  this  particular  remedy.  Lord 
Alvanley  has  said :  "A  party  cannot  call  upon  a  court  of  equity 
for  specific  performance  unless  he  has  shown  himself  ready,  de- 
sirous, prompt  and  eager."  Milward  v.  Earl  of  Thanet,  5  Ves. 
720,  note  b.  Lord  Cranworth  has  given  expression  to  the  same 
opinion :  "  Specific  performance  is  relief  which  this  court  will  not 
give  unless  in  cases  where  the  parties  seeking  it  come  as  promptly 
as  the  nature  of  the  case  will  permit."  Each  v.  Williams,  4-  E>e  G. 
M.  &  G.  691.  In  Van  Daren  v.  Robinson,  1  C.  E.  Gr.  263,  Chan- 
cellor Green  said  :  "  Great  delay,  unaccounted  for,  is  a  bar  to  a 
claim  for  specific  performance."     Lord  Camden,  at  an  early  day, 


154  CASES  IN  CHANCERY.  [33  Eq. 

Johnson  v.  Somerville. 

stated  the  general  doctrine  as  follows  :  "A  court  of  equity,  which 
is  never  active  in  relief  against  conscience  or  public  convenience, 
has  always  refused  its  aid  to  stale  demands  where  the  party  has 
slept  upon  his  rights  or  acquiesced  for  a  great  length  of  time. 
Nothing  can  call  forth  this  court  into  activity  but  conscience, 
good  faith  and  reasonable  diligence.  Where  these  are  wanting, 
the  court  is  passive  and  does  nothing;  laches  and  neglect  are 
always  discountenanced ;  and  therefore,  from  the  beginning  of 
this  jurisdiction,  there  was  also  a  limitation  of  suit  in  this  court." 
Smith  V.  Clay,  3  Bro.  C.  C.  639,  note.  The  doctrine  as  thus 
stated  was  enforced  in  a  case  strongly  analogous  to  the  one  in 
hand,  by  the  supreme  court  of  the  United  States.  Piatt  v.  Vat- 
tier,  9  Pet.  4.13. 

But  little  need  be  said  in  demonstration  of  the  application  of 
these  principles  to  the  case  under  consideration.  More  than 
seventy  years  have  elapsed  since  the  right  of  action  accrued.  Both 
of  the  contracting  parties  have  been  dead  over  fifty  years.  It  is 
almost  certain  that  every  adult  person  who  knew  anything  about 
the  contract  at  the  time  it  was  to  be  performed  is  also  dead. 
Even  those  who  were  just  old  enough,  at  that  time,  to  have 
capacity  to  comprehend  a  business  transaction,  are  now,  most 
probably,  either  dead  or  so  enfeebled  in  mind  and  body  as  to  be 
unfit  to  give  evidence.  "Whether  this  be  so  or  not,  it  is  certain 
that  much  valuable  and  material  evidence  has  been  swept  away 
by  the  great  lapse  of  time,  and  thus  the  court  has  been  deprived, 
by  the  laches  of  the  complainants,  of  the  means  of  ascertaining 
the  truth,  and,  consequently,  of  doing  justice.  It  is  no  injustice 
to  a  suitor  to  deny  him  a  hearing  when  it  appears  that,  by  his 
own  laches,  he  has  rendered  it  impossible  for  the  court  to  do  full 
justice  to  both  parties. 

The  claim  made  in  this  case  is  exceptioually  stale.  I  can  find 
no  instance  in  which  one  so  remarkable  for  its  antiquity  has  ever 
before  been  presented  for  judicial  approval,  and  I  think  it  should, 
for  that  reason  alone,  be  held  to  be  barred. 

The  demurrer  must  be  sustained,  with  costs. 


6  Stew.]  OCTOBER  TERM,  1880.  155 


National  Trust  Co.  v.  Miller. 


The  National  Trust  Company  of  the  City  of  New  York 


Eli  AS  N.  Miller,  receiver  of  the  Silver  Spring  Paper  Company. 

1.  Independent  of  the  statute,  and  simply  as  a  matter  of  courtesy,  this  court 
may  extend  its  aid  to  the  receiver  of  a  foreign  corporation,  for  the  purpose  of 
enabling  him  to  get  possession  of  property,  which  should,  in  equity,  be  ap- 
plied in  payment  of  the  debts  of  the  corporation. 

2.  This  court  may  appoint  a  receiver  of  a  foreign  corporation  having  prop- 
erty in  this  state,  as  auxiliary  to  the  proceeding  instituted  against  it  in  the 
state  which  created  it,  and  confer  upon  him  the  same  powers  that  it  is  authorized 
to  grant  to  the  receiver  of  a  domestic  corporation,  so  far  as  they  may  be  neces- 
sary to  the  recovery  and  collection  of  the  assets  of  the  corporation. 

3.  And  the  court  is  bound  to  give  such  receiver  the  same  remedies  and  aid, 
in  the  collection  of  the  assets  of  the  corporation  he  represents,  that  it  would 
give  to  the  receiver  of  a  domestic  corporation. 

4.  It  is  a  cardinal  rule  of  the  law  of  corporations,  that  a  corporation  created 
by  statute  can  exercise  no  power,  and  has  no  rights,  except  such  as  are  ex- 
pressly given,  or  necessarily  implied. 

5.  Nor  can  the  powei-s  of  a  corporation  be  in  the  slightest  degree  enlarged 
or  extended  by  the  assent  of  the  stockholders,  or  by  any  action  they  may  take. 

6.  A  contract  not  within  the  scope  of  the  powers  conferred  on  a  corporation, 
cannot  be  made  valid  by  the  assent  of  every  one  of  the  shareholders,  nor  can 
it  by  any  partial  performance  become  the  foundation  of  a  right  of  action. 

7.  Equity  regards  the  property  of  a  corporation  as  a  fund  held  in  trust  for 
the  payment  of  its  debts,  and  if  others  than  bona  fide  creditors  of  the  corpora- 
tion or  purchasers  possess  themselves  of  it,  they  take  it  charged  with  this 
trust,  which  a  court  of  equity  will  enforce  against  them. 


On  final  hearing;  on  bill,  answers  and  proofs  taken  before  the 
vice-chancellor. 

Mr.  Thomas  N.  McCarter  and  Mr.  Joseph  D.  Bedle,  for  com- 
plainants. 

Mr.  A.  Q.  Keasbey,  for  defendant. 

The  Vice-Chancellor. 

This  is  a  foreclosure  suit,  in  which  the  validity  of  the  mort- 
gage, upon  which  it  is  founded,  is  disputed.     The  mortgage,  it 


156  CASES  IN  CHANCERY.  [33  Eq. 

National  Trust  Co.  v.  Miller. 

is  contended,  is  void,  first,  because  it  is  in  fact,  though  not  in 
form,  the  deed  of  a  corporation  that  had  no  authority  to  make  it, 
for  the  purpose  for  which  it  was  made ;  and  second,  because  it  is 
the  instrument,  by  which  the  officers  of  the  corporation,  in  whose 
behalf  it  was  made,  have  attempted  to  effect  a  misappropriation 
of  its  assets  in  fraud  of  the  rights  of  the  creditors.  The  leading 
facts  are  almost  entirely  free  from  doubt  or  dispute.  The  mort- 
gage bears  date  February  26th,  1874,  and  was  made  by  "Willie 
A.  Tenney  to  the  complainants.  Just  prior  to  its  date  the  com- 
plainants were  the  owners  of  first  mortgage  bonds  of  the  Chicago, 
Danville  and  Vincennes  Railroad  Company,  to  the  amount  of 
$298,000,  upon  which  default  in  the  payment  of  interest,  due 
October  1st,  1873,  had  been  made.  The  officers  of  the  railroad 
company,  for  the  purpose  of  maintaining  themselves  in  the  con- 
trol of  the  road,  put  on  foot  a  scheme  by  which  they  hoped  to 
get  the  bondholders  to  consent  to  accept  new  obligations  for  the 
interest  in  arrear.  The  complainants  opposed  the  scheme  with 
such  effect  that  the  officers  of  the  railroad  company  deemed  it 
advisable  to  purchase  their  bonds.  They  agreed  to  pay  $253,300 
for  them,  in  four  instalments,  with  an  interval  of  six  months 
between  each  payment.  The  mortgage  in  suit  was  given  as  col- 
lateral security  for  the  payment  of  these  instalments.  The  rail- 
road company  paid  no  money  on  account  of  the  purchase,  and 
no  other  security  was  given,  except  that  the  complainants  were  to 
retain  the  bonds  until  they  were  paid  for.  At  the  time  the  bonds 
were  purchased,  the  mortgaged  premises  belonged  to  the  Silver 
Spring  Paper  Company,  and  constituted  nearly  the  whole  of  its 
assets.  The  stock  of  the  paper  company  at  this  time  was  owned 
wholly  by  Amos  Tenney  and  William  D.  Judson,  and  their 
wives  and  children,  and  these  two  gentlemen  were  prominent 
officers  in  both  corporations,  Mr.  Tenney  being  the  president  and 
treasurer,  and  Mr.  Judson  a  director  of  the  paper  company,  and 
Mr.  Judson  being  the  j)resident,  and  Mr.  Tenney  a  director  of  the 
railroad  company.  By  the  terms  of  the  contract  of  sale,  the 
railroad  company  agreed  to  procure  the  paper  company  to  exe- 
cute a  mortgage  to  the  complainants  for  $50,000,  as  collateral 
security  for  the  payment  of  the  price  of  the  bonds,  and  the  pajier 


6  Ste^v.]  OCTOBER  TERM,  1880.  157 

National  Trust  Co.  v.  Miller. 

company,  afterwards,  adopted  a  resolution  authorizing  the  execu- 
tion of  such  mortgage  to  the  complainants.  This  resolution  was 
subsequently  rescinded,  and  another  passed  authorizing  a  con- 
veyance of  the  mortgaged  premises  to  William  D.  Judson,  osten- 
sibly in  fulfilment  of  a  contract  of  sale,  for  a  consideration  of 
$150,000,  which,  the  resolution  stated,  was  to  be  paid  or  satis- 
factorily secured.  This  resolution  was  adopted  January  27th, 
1874.  On  this  last  date,  a  substitute  was  adopted  directing  a 
conveyance  to  be  made  to  Willie  A.  Tenney,  apparently  in  exe- 
cution of  a  contract  of  sale.  About  the  date  of  the  adoption  of 
this  last  resolution,  the  stockholders  of  the  paper  company  exe- 
cuted a  paper  to  the  complainants,  assenting  to  the  conveyance  to 
be  made  to  Tenney,  acknowledging  the  receipt,  by  the  paper 
company,  of  the  full  consideration  to  be  paid  by  Tenney,  and 
releasing  the  complainants  from  all  obligation  to  see  to  the  pay- 
ment securing  an  application  of  the  purchase-money.  Under 
this  last  resolution,  the  mortgaged  premises  were  conveyed  by  the 
paper  company  to  Willie  A.  Tenney,  who,  immediately  on  receiv- 
ing title,  executed  the  mortgage  in  suit  to  the  complainants,  and 
two  days  afterwards  reconveyed  the  mortgaged  premises  to  the 
paper  company,  subject  to  the  mortgage.  The  mortgage  con- 
forms in  its  terms  to  the  requirements  of  the  contract  of  sale  of 
the  bonds,  made  by  the  complainants  with  the  railroad  company. 
The  arrangement  between  Tenney  and  the  complainants  provides, 
in  express  terms,  that  he  should  incur  no  personal  liability  by  the 
execution  of  the  mortgage.  No  contract  of  sale  ever  existed  be- 
tween the  paper  company  and  Tenney.  The  whole  arrangement, 
so  far  as  they  were  concerned,  was  a  mere  artifice,  devised  to 
throw  around  the  execution  of  the  mortgage  a  very  thin  appear- 
ance of  legality.  The  assets  of  the  paper  company,  at  this  time, 
were  worth,  according  to  the  estimate  of  the  complainants,  about 
$90,000 — other  estimates  put  them  at  a  much  lower  figure — and 
its  liabilities  amounted  to  about  $35,000,  some  of  which  are  still 
outstanding  and  unpaid.  If  the  complainants'  estimate  is  accepted 
as  correct,  and  the  mortgage  is  regarded  as  a  valid  instrument,  it 
is  quite  clear  that  the  execution  of  the  mortgage  plunged  the 
paper  company  into  a  state  of  hopeless  insolvency.     It  was  im- 


158  CASES  IN  CHANCERY.  [33  Eq. 

National  Trust  Co.  v.  Miller. 

possible  to  abstract  $50,000  from  its  available  means,  leaving  it 
but  $40,000  to  pay  its  debts  and  to  foster  its  business,  at  a  time 
when  almost  all  kinds  of  property  were  rapidly  declining  in 
value,  without  producing  that  result.  The  railroad  company 
having  failed  to  pay  the  first  instalment  falling  due  under  their 
contract  in  the  purchase  of  the  bonds,  this  suit  was  brought  to 
compel  the  payment  of  the  mortgage. 

Both  the  complainants  and  the  paper  company  are  corporations 
created  under  the  laws  of  the  state  of  New  York.  Since  the 
commencement  of  this  suit,  this  court  appointed  the  defendant 
Miller  receiver  of  the  paper  company,  upon  a  petition  by  certain 
of  its  creditors,  representing  that  all  its  property  was  located  in 
this  state,  that  it  had  suspended  its  business  and  become  insolv- 
ent, and  that  a  receiver  had  been  duly  appointed  in  New  York 
for  the  purpose  of  winding  it  up  and  making  an  equal  distribu- 
tion of  its  property.  He  was  subsequently  admitted,  on  order, 
as  a  defendant,  and  allowed  to  answer.  The  questions  in  dispute 
arise  mainly  on  his  answer. 

The  complainants  deny  the  receiver's  right  or  capacity  to  assail 
the  validity  of  their  mortgage,  their  contention  being  that  he  sim- 
ply represents  the  corporation,  and  must  therefore  take  its  prop- 
erty subject  to  all  such  charges  as  the  corporation  itself  would 
not  be  permitted  to  gainsay.  This  contention,  it  will  be  observed, 
assumes  that  the  mortgage  is  valid  against  the  corporation. 
Without  expressing  any  opinion  upon  that  question  now,  I  must 
say  that  I  do  not  think  it  is  true,  either  as  a  matter  of  fact  or 
law,  that  the  receiver  represents  only  the  corporation.  He  is  not 
created  by  the  corporation,  nor  does  he  derive  his  power  or  his 
title  from  it,  but  he  is  brought  into  existence  by  the  same 
authority  that  gave  life  to  the  corporation.  He  is  invested  with 
title  by  the  act  of  the  law.  He  is  a  creation  of  the  law  for  the 
protection  of  the  rights  of  creditors,  and  must  necessarily  be 
clothed  with  their  attributes  and  equities  to  accomplish  the  pur- 
pose of  his  creation.  He  represents  both  the  corporation  and  its 
creditors,  and  is  invested  with  the  rights  and  powers  of  both,  so 
far  as  may  be  necessary  to  perform  his  functions. 

Independent  of  statutory  provision,  and  simply  as  a  matter  of 


6  Stew.]  OCTOBER  TERM,  1880.  159 

National  Trust  Co.  v.  Miller. 

comity,  tliis  court  will  extend  its  aid  to  the  receiver  of  a  foreign 
corporation,  for  the  purpose  of  enabh'ng  him  to  get  the  possession 
of  property  which  should,  in  equity,  be  applied  in  payment  of  its 
debts.  Bidlack  v.  Mason,  11  C.  E.  Gr.  230.  In  that  case,  a 
receiver,  appointed  under  the  laws  of  New  York,  filed  a  bill,  in 
this  court,  asking  to  have  a  judgment  recovered  in  the  supreme 
court  of  this  state  against  the  corporation  which  he  represented, 
and  a  sheriffs  sale  made  under  it,  set  aside,  on  the  ground  that 
the  judgment  was  fraudulent,  aud  had  been  used  to  put  the  prop- 
erty of  the  corporation  beyond  the  reach  of  its  honest  creditors. 
A  receiver  was  appointed  to  take  possession  of  the  property  and 
hold  it  during  the  litigation.  By  express  provision,  foreign  cor- 
porations, doing  business  in  this  state,  are  made  subject  to  all  the 
provisions  of  our  statute  concerning  corporations,  so  far  as  the  same 
can  be  applied  to  foreign  corporations.  Hev.  196  §  103.  The 
design  of  this  enactment  seems  to  me  to  be  very  plain.  The 
legislative  design  was,  unquestionably,  to  confer  upon  this  court 
the  same  powers,  in  respect  to  insolvent  corporations,  created  by 
foreign  jurisdictions,  having  projierty  in  this  state,  that  it  exer- 
cised over  insolvent  domestic  corporations,  so  far,  at  least,  as  the 
exercise  of  such  powers  was  necessary  to  the  recovery  of  any 
assets,  whether  legal  or  equitable,  which  should  go  in  discharge 
of  debts.  Under  this  statute,  I  think  this  court  may  appoint  a 
receiver  auxiliary  to  the  proceeding  instituted  against  a  foreign 
corporation,  in  the  state  which  created  it,  and  may  properly  in- 
vest him  with  the  same  powers,  so  far  as  they  are  necessary  to 
the  collection  and  recovery  of  its  assets,  that  it  is  authorized  to 
grant  to  the  receiver  of  a  domestic  corporation.  And  I  think  it 
is  bound,  not  only  in  virtue  of  this  statute,  but  by  the  priuciples 
of  a  just  comity,  to  extend  to  him  the  same  remedies  and  rules 
of  judgment,  in  the  recovery  of  the  assets  of  the  corporation,  that 
it  would  give  to  the  receiver  of  a  domestic  corporation. 

The  order  of  appointment  in  this  case  invests  the  defendant 
with  the  full  measure  of  power  authorized  by  the  statute.  He  is 
given  full  power  and  authority  to  demand,  sue  for,  collect,  receive 
and  take  into  his  possession  all  rights,  credits  and  property  of 
every  description,  belonging  to  the  corporation  at  the  time  of  its 


160  CASES  IN  CHANCERY.  [33  Eq. 

National  Trust  Co.  v.  Miller. 

insolvency.  Under  a  much  less  comprehensive  grant  it  has  been 
decided  by  the  court  of  errors  and  appeals  that  a  receiver  ap- 
pointed under  the  statute  providing  a  method  for  the  discovery 
of  property  belonging  to  a  judgment-debtor,  has  capacity  to 
maintain  a  suit  in  equity  to  annul  a  sale  of  personal  property 
made  in  fraud  of  creditors,  or  to  remove  fraudulent  liens  placed 
thereon.  Miller  v.  Mackenzie,  2  Stew.  Eq.  291.  There  can  be  no 
doubt,  under  the  rule  established  by  this  adjudication,  that  it 
would  be  competent  for  the  receiver  in  this  case,  in  his  official 
character,  to  bring  a  suit  in  equity  to  nullify  the  mortgage  in 
question.  He  holds  the  title  to  the  mortgaged  premises;  he 
alone  has  a  right  to  their  possession,  and  he  alone  can  sell  and 
convey  them.  Adopting  an  argument  very  forcibly  put  in  the 
case  just  cited,  we  may  say  it  cannot  be  pretended,  if  the  mortga- 
gees were  in  possession,  that  this  receiver  could  not  maintain  an 
action  of  ejectment  against  them,  and  if  he  established  the  fact 
that  the  mortgage  was  a  fraud  upon  creditors,  that  he  would  not 
be  entitled  to  recover.  Why,  if  this  be  so,  is  he  to  be  confined 
to  such  action,  and  to  be  excluded  from  taking  his  case  before  a 
tribunal  that  is  competent  not  only  to  adjudge  with  regard  to  his 
right  to  the  property,  but  also  to  remove  from  it  a  fraudulent  and 
pretended  claim,  which,  so  long  as  it  exists,  renders  it  unsalable 
in  his  hands?  His  right  of  action  and  his  right  of  defence  are, 
in  this  instance,  in  my  apprehension,  reciprocal,  and  if  he  has 
produced  sufficient  evidence  of  the  invalidity  of  the  mortgage  to 
entitle  him,  if  he  were  complainant,  to  a  decree  so  adjudging,  he 
is,  upon  the  same  evidence,  entitled  to  a  decree  of  dismissal. 
Where  it  appears  that  a  corporation  is  attempting,  by  suit,  to  en- 
force a  contract  which  it  had  no  power  to  make,  and  the  con- 
tract, for  that  reason,  is  void,  the  defendant  may  avail  himself 
of  this  defence  by  answer.  Trenton  Mutual  Life  &  Fire  Ins.  Go. 
V.  McKelway,  1  Beas.  133. 

In  my  judgment,  the  receiver  stands  before  the  court  invested 
with  the  rights  and  equities  of  the  creditors  of  the  paper  com- 
pany, and  has  therefore  a  right  to  ask  judgment  against  this 
mortgage,  if  he  has  shown  that  it  was  executed  in  fraud  of  their 
rights. 


6  Stew.]  OCTOBER  TERM,  1880.  161 

National  Trust  Co.  v.  Miller. 

This  brings  us  to  the  question,  is  this  mortgage  a  valid  instru- 
ment against  the  creditors  of  the  paper  company?  And  the 
creditors  here  meant  are  those  whose  claims  accrued  subsequent 
to  the  execution  of  the  mortgage  as  well  as  those  whose  claims 
existed  at  its  date.  The  paper  company  was  formed  to  manu- 
facture paper,  and  to  vend  and  sell  the  same.  No  other  purpose 
or  object  is  expressed  in  its  certificate  of  incorporation.  Prior  to 
the  execution  of  the  mortgage,  it  had  no  business  relation,  con- 
nection or  transaction  with  the  railroad  company  or  the  com- 
plainants. A  foreign  corporation,  owning  lands  in  this  state, 
may,  under  our  statute,  convey  or  mortgage  them.  Bev.  195 
§  99.  The  conveyance  by  the  paper  company  to  Tenney  was, 
in  everything  but  its  form,  a  mortgage.  The  title  was  put  in 
him  merely  to  enable  him  to  do  what  the  paper  company  wanted 
to  do  itself,  but  what  it  could  not  do  itself  without  having  the 
papers  display  upon  their  face  the  rank  illegality  of  the  transac- 
tion. The  conveyance  to  him  was  an  artifice  invented  to  hide 
the  real  nature  of  the  transaction.  The  complainants,  if  not  par- 
ticipants in  the  invention  of  this  crooked  scheme,  accepted  their 
mortgage  with  full  knowledge  of  it.  The  evidence  on  this  point 
is  conclusive.  It  is  found,  first,  in  the  original  contract,  which 
provided  that  the  paper  company  should  execute  a  mortgage 
directly  to  the  complainants ;  second,  in  the  terms  of  the  mort- 
gage itself — for  if  the  complainants  had  for  one  moment  supposed 
that  Tenney  was  an  actual  purchaser,  and  had,  in  good  faith, 
agreed  to  pay  $150,000  for  the  mortgaged  premises,  it  cannot  be 
believed  that  they  would,  without  consideration,  have  relieved 
him  from  all  personal  liability  for  the  mortgage  debt.  Why 
should  they  ?  In  that  case  he  would  have  been  bound,  in  law 
and  honor,  to  pay  the  whole  of  the  purchase-money,  and  they 
could  have  had  no  possible  motive  or  reason  for  relieving  him, 
gratuitously,  from  any  part  of  his  obligation.  But  if  they  under- 
stood that  he  was  used  simply  as  an  instrument  in  a  scheme  to 
accomplish,  by  indirection,  what  the  paper  company  could  not 
do  directly,  then  it  is  easy  to  understand  their  conduct.  And, 
third,  in  the  fact  that  the  complainants  accepted  an  assent,  exe- 
cuted to  themselves  by  the  stockholders  of  the  paper  company, 

11 


162  CASES  IN  CHANCERY.  [33  Eq. 

National  Trust  Ck).  v.  Miller. 

assenting  to  the  conveyance  to  Tenney,  and  releasing  the  com- 
plainants from  all  obligation  to  see  to  the  payment  or  applica- 
tion of  the  purchase-money.  It  is  impossible  to  misunderstand 
the  meaning  of  these  facts,  or  to  misinterpret  their  force. 

The  validity  of  this  mortgage  is  indefensible  except  on  the 
theory  that  it  was  within  the  scope  of  the  powers  of  the  paper 
company  to  donate  the  half  or  the  whole  of  its  property  to  the 
railroad  company,  regardless  of  the  rights  of  its  creditors  or  the 
public.  It  is  clear  it  possessed  no  such  power,  and  if  it  had  at- 
tempted to  do  so,  by  open  and  direct  means,  its  act  would  have 
been  so  conspicuously  ultra  vires  as  to  strip  it  of  the  least  appear- 
ance of  validity.  It  is  a  cardinal  rule  of  the  law  of  corporations 
that  a  corporation  created  by  statute  can  exercise  no  power, 
and  has  no  rights,  except  such  as  are  expressly  given  or  neces- 
sarily implied.  Huntington  v.  Savings  Bank,  96  U.  S.  388 ; 
Grant  on  Corp.  13;  Ang.  &  Ames  on  Corp.  §  iii/  Green's 
JBriee  S9.  This  rule,  for  a  long  time,  has  formed  part  of  our 
statutory  system.  R.  S.  136  %  3 ;  Rev.  177  %  3;  Trenton 
Mutual  Life  &  Fire  Ins.  Co.  v.  McKelioay,  1  Beas.  133.  Nor 
can  the  powers  of  a  corporation  be  in  the  slightest  degree  en- 
larged or  extended  by  the  assent  of  its  stockholders,  or  by  any 
action  they  may  take.  In  Black  v.  Delaware  and  Raritan  Canal 
Co.,  9  C.  E.  Gr.  IfJ55,  the  court  of  errors  and  appeals  affirmed 
that  no  majority  of  stockholders,  however  large,  has  a  right  to 
divert  one  cent  of  the  joint  capital  to  any  purpose  not  consistent 
with  and  growing  out  of  the  original  fundamental  purpose  of  the 
corporation.  And  the  supreme  court  of  tlie  United  States  has 
recently  declared,  following  a  judgment  of  the  house  of  lords,  in 
which  the  present  lord  chancellor  (Selborne)  and  the  late  lord 
chancellor  (Cairns),  and  Lords  Chelmsford,  Hath erly  and  O'Hagan 
concurred,  that  the  broad  doctrine  is  now  established  that  a  con- 
tract, not  within  the  scope  of  the  powers  conferred  on  a  corpora- 
tion, cannot  be  made  valid  by  the  consent  of  every  one  of  the 
shareholders,  nor  can  it,  by  any  partial  performance,  become  the 
foundation  of  a  right  of  action.  Thomas  v.  West  Jersey  R.  R. 
Co.,  101  U.  S.  71.  While  it  must  be  admitted  that  this 
doctrine    has    not    received    the    sanction    of   every    eminent 


6  Stew.]  OCTOBER  TERM,  1880.  163 

National  Trust  Co.  v.  Miller. 

judge  who  has  been  called  upon  to  enforce  it,  yet  I  think 
it  is  now  vouched  for  by  such  august  authority,  and  is  so  mani- 
festly supported  by  sound  reason  and  the  highest  considerations 
of  policy,  that  it  must  hereafter  be  accepted,  universally,  as  ex- 
pressing the  true  rule  of  judgment  in  such  cases. 

I  am  of  opinion  that  it  was  not  within  the  scope  of  the  powers 
of  the  paper  company  to  donate  the  half  of  its  property,  or  to  do 
Avhat  was  practically  the  same  thing,  to  make  a  gratuitous  pledge 
of  its  property  for  the  debt  of  another  corporation.  Nor  do  I 
think  it  could  do  by  indirection  what  it  was  incompetent  to  do 
directly. 

There  is  another  important  principle  which  I  think  it  is  my  duty 
to  enforce  in  deciding  this  case.  Equity  regards  the  property  of  a 
corporation  as  a  fund  held  in  trust  for  the  payment  of  its  debts, 
and  if  others  than  bona  fide  creditors  of  the  corporation,  or  pur- 
chasers, possess  themselves  of  it,  they  take  it  charged  with  this 
trust,  which  a  court  of  equity  will  enforce  against  them.  This 
is  now  a  well-recognized  rule  of  equity  jurisprudence,  and  the 
courts  of  no  state  have  enforced  it  with  more  firmness  than  those 
of  the  state  which  gave  corporate  entity  to  both  of  these  corpora- 
tions. Bartleit  v.  Dreio,  57  N.  Y.  587  ;  Lawrence  v.  Nelson,  21 
N.  Y.  158 ;  McLaren  v.  Pennington,  1  Paige  102 ;  Nathan  v. 
WhiUocJc,  3  Edw.  Ch.  215;  S.  C.  on  appeal,  9  Paige  152;  Cur- 
ran  V.  State  of  Arkansas,  15  How.  $04-;  Wood  v.  Dwmmer,  3 
Mason  308 ;  Sawyer  v.  Hoag,  17  Wall.  610 ;  Field  on  Corp. 

§  m. 

The  same  principle,  in  a  more  amplified  form,  was  promul- 
gated by  Chancellor  Williamson,  in  Redmond  v.  Dickerson,  1 
Stock.  507.  In  that  case  one  of  the  directors  of  a  corporation 
had  purchased  certain  machinery  for  it  at  one  price,  and  after- 
wards charged  it  to  the  corporation  at  an  advance  of  $10,000. 
This  charge  was  made  with  the  consent  of  the  other  directors, 
who,  with  the  director  who  made  the  purchase,  held  all  the  stock 
of  the  corporation.  The  chancellor  was  convinced  that  the 
$10,000  had  been  divided  among  all  the  directors.  The  validity 
of  this  remarkable  transaction  was  attempted  to  be  defended  on 
the  ground  that  nobody  was  harmed  by  it ;  that  inasmuch  as  the 


164  CASES  IN  CHANCERY.  [33  Eq. 

National  Trust  Co.  v.  Miller. 

directors  owned  all  the  stock,  and  they  consented,  no  one  else  had 
sufficient  interest  to  entitle  them  to  be  heard.  But  the  chan- 
cellor very  pertinently  asked : 

"Were  not  the  public  interested ?  Why  did  the  charter  require  a  certain 
amount  of  money  to  be  paid  in  as  capital,  upon  which  the  company  were  to  do 
business  ?  Was  it  not  for  the  protection  of  the  public,  with  whom  the  com- 
pany were  to  obtain  credit  and  to  deal?  *  *  *  Did  it  make  no  diflerence, 
though  these  directors  were  the  sole  stockholders,  whether  the  capital  was  im- 
providently  diminished  or  safely  guarded  and  preserved  as  a  fund  for  the 
future  operations  of  the  company  ?  Was  it  not  a  breach  of  trust  for  the 
directors  so  to  speculate  on  the  capital,  for  their  individual  benefit,  as  to  lessen 
the  security  which  the  legislature  intended  to  provide  for  the  protection  of 
their  dealers  and  the  business  community?  Tiie  directors  of  a  corporation 
cannot  speculate  with  its  funds  or  its  credit,  and  take  to  themselves  the  profits 
of  their  ventures.  Even  if  they  are  the  only  persons  interested  as  stockholders, 
still  they  have  no  right  to  do  so,  for  such  transactions  are  opposed  to  the  policy 
of  the  law,  and  cannot,  in  any  manner,  be  countenanced  in  a  court  of  equity." 

No  argument  is  necessary  to  apply  these  views  to  the  case  in 
liand,  nor  to  show  the  pertinency  of  the  principle  above  adverted 
to.  The  complainants  are  in  no  sense  bona  fide  creditors  or  ptir- 
chasers  of  the  paper  company.  They  reached  tlieir  present 
position  by  a  very  devious  path.  They  took  their  mortgage  with 
full  knowledge  that,  as  against  creditors,  its  execution  was  an  in- 
sidious attempt  to  divert  the  property  of  the  paper  company  from 
its  legitimate  uses.  Indeed,  I  think  it  would  be  difficult  to 
imagine  a  transaction  more  subversive  of  everything  like  safety 
and  security  in  the  management  and  use  of  corporate  property 
than  the  one  brought  iu  judgment  here. 

Whether  the  assent  of  the  stockholders  to  the  conveyance  to 
Tenney  will  conclude  them  in  case  more  money  should  be  real- 
ized from  the  sale  of  the  mortgaged  premises  than  shall  be  suffi- 
cient to  pay  the  debts  of  the  paper  company,  does  not  fall  within 
the  province  of  this  court  to  consider  or  decide.  So  far  as  now 
appears,  no  citizen  of  this  state  is  interested  as  a  creditor.  This 
court  is  therefore  only  required  to  exert  an  auxiliary  jurisdiction. 
It  is  only  required  to  put  its  power  in  motion,  so  far  as  may  be 
necessary  to  put  the  property  of  the  corporation,  located  in  this 
state,  in  such  form  that  it  can  be  readily  and  conveniently 
administered,  and,  after  that  is  done,  to  transmit  it  to  the  proper 


6  Stew.]  OCTOBER  TERM,  1880.  165 

Eedman  v.  Philadelphia,  Marlton  and  Medford  K.  E.  Co. 

officer,  appointed  by  the  courts  of  the  state  of  New  York,  to  be 
there  administered  and  distributed  according  to  law. 

I  am  of  opinion  that  the  mortgage  sued  on  is  without  force  or 
validity  against  the  receiver.  The  bill  must,  therefore,  be  dis- 
missed, with  costs. 


Samuel  B.  Redman 

V. 


The  Philadelphia,  Maeltox  and  Medford  Railroad 

Company. 

That  section  of  the  general  railroad  law  which  authorizes  a  railroad  corpo- 
ration to  enter  on  lands  and  begin  constructing  their  road,  after  paying  into 
the  circuit  court  of  the  county  where  the  lands  lie,  the  amount  awarded,  pend- 
ing their  appeal  from  such  award,  is  unconstitutional  in  that  compensation, 
or  a  tender  thereof  to  the  land-owner,  does  not  precede  the  use  and  occupation 
of  his  lands ;  and  for  want  of  such  tender  he  may  enjoin  the  company  from 
entering  upon  his  lands  and  constructing  their  road  thereon. 


On  motion  for  injunction.  Heard  on  bill  and  order  to  show 
cause,  no  answer  being  made. 

3Ir.  8.  H.  Grey,  for  complainant. 

Mr.  Peter  L.  Voorhees,  for  defendants. 

The  Vice-Chaxcellor, 

The  defendants  are  a  railroad  corporation,  organized  under  the 
general  railroad  law,  for  the  purpose  of  constructing  a  railroad 
from  Haddonfield,  in  the  county  of  Camden,  to  Medford,  in  the 
county  of  Burlington.  The  complainant  owns  a  farm  in  the 
county  of  Camden,  situated  on  the  line  of  the  projected  road. 
Being  unable  to  agree  with  him  for  the  purchase  of  a  right  of 
way  through  the  farm,  the  defendants  procured  commissioners  to 
be  appointed  to  appraise  the  value  of  his  land  and  assess  his 
damages.  The  commissioners'  report  awards  him  $2,544.  The 
defendants  have  appealed.     They  have  not  paid  the  complainant 


166  CASES  IN  CHANCERY.  [33  Eq. 

Kedman  v.  Philadelpbia,  Marlton  and  Medford  K.  E.  Ck). 

the  sum  awarded,  uor  tendered  or  offered  to  pay  it,  but  have 
paid  it  into  the  circuit  court  of  the  county  of  Camden,  under  an 
order  directing:  that  it  shall  remain  there  to  abide  the  result  of 
the  appeal  or  the  further  order  of  the  court.  In  this  posture  of 
affairs,  the  defendants  took  possession  of  the  complainant's  lands, 
in  spite  of  his  resistance,  and  are  now  proceeding  with  the  work 
of  constructing  their  road  thereon.  He  now  appeals  to  this 
court  to  protect  him  in  the  enjoyment  of  his  property,  until 
compensation  shall  be  made  to  liim  for  it.  He  has  always  been 
willing  to  accept  the  sum  awarded  by  the  commissioners,  and 
allow  the  defendants  to  take  the  lands  condemned. 

If  the  defendants'  appropriation  of  the  complainant's  lands 
constitutes  a  taking  of  private  property  by  a  private  corporation, 
without  compensation  first  made  to  the  owner,  there  can  be  no 
doubt  that  it  is  the  duty  of  the  court  to  give  to  the  complainant 
the  protection  he  seeks.  Browning  v.  Camden  and  Woodbury 
R.  R.  Co.,  3  Gr.  Ch.  1/7 ;  Jersey  City  and  Bergen  R.  R.  Co. 
V.  Je7'sey  City  and  Hohohen  H.  R.  R.  Co.,  5  C.  E.  Gr.  61 ; 
Mettler  v.  Easton  and  Amboy  R.  R.  Co.,  10  C.  E.  Gr.  214.; 
Morris  and  Essex  R.  R.  Co.  v.  Hudson  Tunnel  R.  R.  Co.,  Id.  3S4. 

The  defendants  claim  that  their  act  in  appropriating  the  com- 
plainant's lands,  under  the  circumstances  stated,  was  authorized 
by  law.  Their  warrant  is  found  in  the  last  clause  of  the  thir- 
teenth section  of  the  general  railroad  law,  which  provides  that  in 
case  any  company  incorporated  under  this  act  shall  appeal  from 
the  finding  of  the  commissioners  appointed  to  appraise  and 
assess,  then  the  said  company  shall,  on  payment  of  the  amount 
so  assessed  or  found  into  the  circuit  court  of  the  county  where 
the  lands  taken  lie,  be  empowered  to  enter  upon  and  take  pos- 
session of  said  lands,  and  proceed  with  the  work  of  constructing 
its  road.  Rev.  929  §  101.  This  clause  did  not  form  part  of 
the  original  act  (P.  L.  of  1873  p.  S8),  but  was  added  by  amend- 
ment. P.  L.  of  1877  p.  192.  The  twelfth  section  of  the  act 
provides  that  after  the  report  of  the  commissioners  shall  have 
been  filed  in  the  office  of  the  clerk  of  the  county  where  the 
lands  taken  lie,  and  on  payment  or  tender  of  the  amount 
awarded,  as  thereinafter  provided,  the  corporation  shall  be  em- 


6  Ste^v.]  OCTOBER  TERM,  1880.  167 

Kedman  v.  Philadelphia,  Marlton  and  Medford  E.  R.  Co. 

powered  to  enter  upon  and  take  possession  of  the  lauds  con- 
demned. Rev.  9'28  §  100.  The  directions  of  the  two  sectious 
just  referred  to  upon  this  subject,  stood,  in  the  original  act,  in 
exact  harmony.  The  twelfth  directed  that  on  payment  or  tender 
of  the  sum  awarded,  the  corporation  should  have  the  right  of 
appropriation;  while  the  thirteenth  provided  that  in  case  a 
tender  was  made,  and  the  land-owner  refused  to  accept,  the 
money  should  be  paid  into  court,  and  thereupon  the  corporation 
should  be  empowered  to  take  possession. 

There  can  be  no  doubt  that  if  the  law  stood  now  in  its  original 
form,  the  act  of  the  defendants  would  be  without  legat  warrant. 
Under  the  original  act,  except  they  paid  the  sum  awarded,  or 
made  a  tender  of  it,  they  acquired  no  right.  The  introduction 
of  the  new  clause,  by  amendment,  shows  conclusively,  I  think, 
that  the  legislature  intended  thereby  to  prescribe  a  new  and 
different  rule  from  that  prescribed  by  the  original  act.  Any 
attempt,  therefore,  to  read  the  pew  provision  so  as  to  make  it 
harmonize  with  the  old  and  express  the  same  idea  must,  I  think, 
prove  futile.  The  new  enactment,  as  I  understand  it,  says 
plainly  that  if  the  corporation  appeal  from  the  finding  of  the 
commissioners,  they  shall  be  authorized,  on  paying  the  money 
into  court,  and  without  making  payment  or  tender  to  the  land- 
owner, though  he  is  known  and  of  full  capacity,  and  his  title  is 
unquestioned,  to  appropriate  his  lands. 

Is  this  enactment  a  law — in  other  words,  is  it  within  the  scope 
of  the  powers  conferred  by  the  constitution  upon  the  legisla- 
ture ?  Under  every  form  of  government,  private  property  may 
be  taken  for  public  use.  The  constitution  of  this  state  imposes 
two  important  restrictions  upon  the  exercise  of  this  power.  The 
first  is  found  in  the  bill  of  rights,  and  ordains  that  "private 
property  shall  not  be  taken  for  public  use  without  just  compen- 
sation ; "  and  the  second  is  found  in  that  part  of  the  constitu- 
tion which  limits  the  power  of  the  legislature.  It  ordains  that 
"  individuals  or  private  corporations  shall  not  be  authorized  to 
take  private  property  for  public  use,  without  just  compensation 
first  made  to  the  owners."  The  first  was  intended  to  regulate 
the  right  of  the  state,  whether  the  power  is  exercised  by  the  state 


168  CASES  IN  CHANCERY.  [33  Eq. 

Redman  v.  Philadelphia,  Marl  ton  and  Medford  E.  R.  Co. 

for  its  own  jmrposes,  or  by  a  municipal  corporation  for  its  pur- 
poses, under  the  authority  of  the  state ;  and  the  second  was  in- 
tended to  limit  the  power  of  the  legislature  in  granting  the  right 
to  such  bodias  as  the  defendants.  It  is  the  last  regulation  which 
must  govern  my  action  in  this  case.  Its  meaning,  to  my  mind, 
is  perfectly  obvious;  indeed,  it  is  its  own  expositor.  When 
this  is  the  case,  reasoning  and  illustration  have  no  office.  What 
is  already  perfectly  clear  and  plain  cannot  be  made  more  so  by 
any  process  of  demonstration.  As  a  general  rule,  any  attempt 
in  that  direction  is  more  likely  to  obscure  than  elucidate.  The 
provisioil  under  consideration  plainly  ordains  that  compensation 
shall  precede  appropriation ;  and  if  the  legislature,  in  this  enact- 
ment, have  not  observed  this  direction,  they  have  transcended 
their  power. 

Such,  I  think,  has  been  the  uniform  construction  given  to  this 
clause  by  both  the  legislative  and  judicial  departments  of  the  gov- 
ernment. I  think  it  will  be  very  difficult  to  find  a  single  instance, 
before  the  present,  where  the  legislature,  since  the  adoption  of 
the  present  constitution,  have  granted  to  a  jirivate  cori)oration 
the  power  to  exercise  the  right  of  eminent  domain,  except  on 
condition  that  payment  or  tender  of  compensation  should  pre- 
cede appropriation,  if  the  person  entitled  to  it  was  known  and 
of  full  capacity,  and  his  title  was  free  and  unquestioned.  There 
may  be  such  instances ;  but  if  they  exist,  it  is  certain  the  power 
thus  granted  has  never  been  exercised  in  defiance  of  the  will  of 
the  land-owner.  Under  charters  containing  the  condition  above 
mentioned,  the  courts  of  this  state  have  repeatedly  held  that  the 
corporation  acquired  no  right  to  appropriate  the  lands  until  com- 
pensation was  first  made,  either  by  payment  or  tender.  StaJT  v. 
Camden  and  Atlantic  R.  R.  Co.,  4-  Zab.  59B,  598 ;  Metier  v.  Boston 
and  Amhoy  R.  R.  Co.,  8  Vr.  222 ;  Morris  and  Essex  R.  R.  Co. 
v.  Hudson  Tunnel  R.  R.  Co.,  10  C.  E.  Gr.  384.;  Mettler  v. 
Easton  and  Amhoy  R.  R.  Co.,  Id.  214-.  Tender,  if  the  money 
is  refused,  is  regarded  as  equivalent  to  payment.  Doughty  v. 
Somerville  and  Easton  R.  R.  Co.,  1  Zab.  44^ ;  Mercer  and 
Somerset  R.  R.  Co.  v.  Delaware  and  Bound  Brook  R.  R.  Co., 
11  C.  E.  Gi\  4^4-     Compensation  is  not  made  in  fact  in  such 


6  Stew.]  OCTOBER  TERM,  1880.  169 

Eedman  v.  Philadelphia,  Marlton  and  Medford  K.  E.  Co. 

case,  because  the  person  entitled  to  it  will  not  accept  it.  But  it 
is  in  law.  It  is  his  fault  that  it  is  not  made  in  fact,  and  lie  can- 
not therefore  be  heard  to  urge  his  own  wrong  for  the  purpose  of 
defeating  the  right  of  the  corporation. 

Chancellor  Halsted,  in  Doughty  v.  Somo^lle  and  Easton  R. 
R.  Co.,  3  Hal.  Ch.  51,  held  distinctly  that  if  the  charter  under 
consideration  in  that  case  authorized  the  railroad  company  to 
take  possession  of  the  complainant's  lands,  without  first  making 
compensation,  either  by  payment  of  the  sum  awarded  by  the 
commissioners  or  making  tender  of  it,  it  was,  in  that  respect, 
unconstitutional  and  void.  Mr.  Justice  Depue,  in  Lorveree  v. 
Newark,  9  Vr.  151,  in  defining  the  difference  as  to  the  time  when 
compensation  must  be  made,  under  the  two  clauses  of  the 
constitution  above  quoted,  said  where  private  property  is  taken 
by  the  state,  or  by  a  municipal  corporation  by  authority  of 
the  state,  compensation  need  not  precede  actual  appropriation  ; 
but  where  it  is  taken  by  individuals  or  a  private  corporation,  by 
the  exercise  of  the  right  of  eminent  domain,  there  compensation 
must  precede  occupancy.  These  utterances  merely  reiterate  what 
the  constitution  declares  with  the  utmost  plainness  and  sim- 
plicity. 

I  do  not  think  the  validity  of  this  enactment  can  be  vindi- 
cated, on  the  ground  that  the  power  of  the  legislature  to  define 
what  shall  be  considered  making  compensation  under  this  clause, 
is  without  restriction,  and  that  it  is  therefore  competent  for  it  to 
declare  that  the  payment  of  the  money  into  court,  or  to  any 
other  agency  of  government,  or  to  an  indifferent,  responsible 
third  person,  shall  be  considered  a  compliance  with  this  provision 
of  the  constitution.  Such  an  interpretation  seems  to  me  much 
more  like  an  evasion  than  even  a  subtle  construction.  Tlie 
command  of  the  constitution  is  that  compensation  shall  he  made 
to  the  owner  ;  that  is,  that  the  money  shall  become  his,  and  that 
he  shall  have  the  same  dominion  over  it  that  he  had  over  the 
land  before  it  became  the  property  of  the  corporation,  and  not 
that  the  money  shall  be  made  secure  to  him,  or  that  it  shall  be 
placed  in  the  custody  of  the  law  or  impounded  for  his  benefit. 
The  manifest  purpose  of  the  framers  of  the  constitution  was  not 


170  CASES  IN  CHANCERY.  [33  Eq. 

Foley  V.  Kirk. 

to  give  the  parties  reciprocal  or  concurrent  rights,  but  to  give 
precedence  and  superiority  to  that  of  the  land-owner.  They 
meant  that  until  he  had  his  compensation  in  his  hand,  provided 
he  was  willing  to  accept  it,  the  corporation  should  acquire  no 
right  to  the  possession  of  his  land.  This  enactment,  if  enforced, 
will  subvert  that  purpose,  and  it  is  therefore,  in  my  judgment, 
without  constitutional  warrant  and  void. 

I  am  fully  aware  of  the  gravity  of  the  question  submitted  for 
judgment,  and  that  the  conclusion  I  have  reached  is  one  that 
should  not  be  formed  without  very  careful  deliberation.  But  I 
am  so  thoroughly  persuaded,  by  full  reflection  and  careful  ex- 
amination, that  this  enactment  transcends  the  power  committed 
to  the  legislature  by  the  constitution,  that  I  cannot  hesitate  to 
say  so. 

An  injunction  must  go,  prohibiting  the  defendants  from 
appropriating  the  lands  condemned,  until  they  shall  have  first 
paid  the  compensation  awarded  by  the  commissioners,  or  such 
other  as  may  be  found  by  a  jury. 


Makgaeet  Foley  et  al. 

V. 

Edwin  R.  Kirk. 


1.  To  compel  the  surrender  and  cancellation  of  written  instruments,  which 
have  spent  their  force  and  are  mere  nullities,  but  which,  left  in  an  uncanceled 
state,  may  becloud  a  title,  or  be  used  for  dishonest  purposes,  is  an  ancient  and 
well-established  head  of  equity  jurisprudence.  A  court  of  equity  will  assume 
jurisdiction  and  compel  the  surrender  of  the  instrument,  or  limit  its  use  to 
such  purposes  as  may  seem  to  it  to  be  equitable,  when  a  suit  at  law  is  already 
pending,  if  it  shall  appear  that  it  is  doubtful  whether  the  instrument  may 
not  be  used,  in  such  suit,  for  a  dishonest  or  inequitable  purpose. 

2.  The  question  whether  a  deed  was  intended,  by  the  parties  thereto,  to 
operate  as  a  mortgage  or  as  an  absolute  conveyance,  is  one  that  a  common  law 
court  can  neither  hear  nor  determine.  It  is  a  question  belonging  exclusively 
to  equity  tribunals,  and  over  which  common  law  tribunals  have  no  jurisdic- 
tion whatever. 


6  Stew.]  OCTOBER  TERM,  1880.  171 

Foley  V.  Kirk. 

3,  It  is  a  universal  principle  that  a  purchase,  at  a  tax  sale  by  one  whose 
duty  it  was  to  pay  the  taxes,  shall  operate  only  as  an  extinguishment  of  the 
tax.  One  man  can  acquire  no  rights  against  another  by  a  neglect  of  a  duty 
which  he  owes  to  the  other. 

4.  Where  a  party,  lawfully  in  the  possession  of  land,  under  a  title  which 
turns  out  to  be  defective,  makes  permanent  improvements,  in  good  faith,  before 
he  has  notice  that  his  title  is  defective,  which  materially  increases  the  value 
of  the  inheritance,  and  the  actual  owner  afterwards  seeks  relief  against  him 
in  equity,  relief  will  not  be  given  except  upon  equitable  terms. 


On  final  hearing  on  bill,  answer  and  proofs  taken  before  a 
master. 

3Ir.  Charles  H.  Winjield  and  Mr.  Peter  Bentley,  for  complain- 
ants. 

Mr.  Joseph  D.  Bedle,  for  defendant. 

The  Vice-Chancelloe. 

The  principal  object  of  the  bill  in  this  case  is  to  compel  the 
defendant  to  surrender,  for  cancellation,  five  declarations  of  sale, 
■which  the  complainants  allege  were,  long  ago,  fully  paid,  and 
are,  consequently  without  legal  force,  but  which  they  say  the  de- 
fendant intends,  wrongfully,  to  put  in  evidence  against  them  on 
the  trial  of  an  action  of  ejectment,  which  they  have  brought 
against  him,  and  that  their  production  in  evidence  will  very 
seriously  imperil  their  just  rights. 

The  facts  material  to  the  controversy,  which  are  either  ad- 
mitted or  so  fully  proved  as  to  be  beyond  dispute,  may  be  stated 
as  follows : 

Ann  Stanton  died  intestate,  in  1843,  seized  in  fee  of  two  lots 
of  land  situate  in  the  city  of  Hoboken.  She  died  without  leav- 
ing issue,  but  leaving  a  husband,  and  two  brothers  and  a  sister. 
A  child  was  born  to  her  and  her  husband,  which  died  in  infancy, 
so  that,  on  her  death,  her  lands  descended  to  her  two  brothers 
and  her  sister,  subject  to  an  estate  by  the  curtesy  in  her  husband. 
Her  husband,  John  Stanton,  conveyed  the  lands  of  which  she 
died  seized  to  his  brother,  William  Stanton,  by  deed  dated  July 
15th,  1846.      William   Stanton,  after  he  acquired  John's   life 


172  CASES  IX  CHANCERY.  [33  Eq. 

Foley  V.  Kirk. 

estate,  neglected  to  pay  a  tax  of  S14.93,  assessed  against  one  of 
lots  for  the  year  1858,  and  on  the  16th  of  May,  1859,  the 
tlie  proper  municipal  authority  sold  this  lot  to  one  Ebeuezer 
Montague,  for  the  amount  of  the  tax  and  costs,  for  the  term  of 
nine  hundred  years,  and  issued  a  declaration  of  sale.  The  same 
lot  was  again  sold,  to  the  same  purchaser,  for  a  term  of  ninety- 
nine  years,  on  the  30th  day  of  April,  1860,  for  the  tax  of  the 
year  1859,  and  also  for  a  sewer  assessment  of  $64.23.  Declara- 
tions of  sale,  in  execution  of  these  sales,  were  also  issued.  On 
the  same  day  the  other  lot  was  sold,  to  the  same  purchaser,  for  a 
term  of  ninety-nine  years,  for  the  tax  of  1859,  and  likewise  for  a 
sewer  assessment  of  $66.43.  Declarations  of  sale  were  also  issued 
upon  these  sales.  The  total  amount  of  the  taxes  and  assessments 
for  which  these  sales  were  made,  was  $180.42. 

Some  time  in  the  year  1861,  William  Stanton  applied  to  one 
Henry  Thomas,  who  resided  at  Utica,  in  the  state  of  New  York, 
to  make  him  a  loan  for  the  purpose  of  enabling  him  to  pay  off 
or  purchase  Montague's  claims  under  the  tax  sales.  Thomas  con- 
sented to  do  so,  and  afterwards  paid  Montague  $300  in  satisfaction 
of  his  claim.  The  amount  so  paid  to  Montague  was  negotiated 
M'holly  by  Thomas  and  Montague.  Stanton  took  no  part  in  it, 
nor  was  he  consulted  about  it.  Prior  to  this  time,  Thomas  had 
paid  Stanton's  debts,  advancing  a  considerable  sum  for  that  pur- 
pose. Immediately  after  the  sum  to  be  paid  to  Montague  was 
agreed  on,  Stanton  requested  Thomas  to  accept  a  mortgage  for 
the  whole  of  his  indebtedness  to  him,  including  not  only  his  pay- 
ment to  Montague,  but  also  his  payments  to  others.  This 
Thomas  declined  to  do,  but  insisted  on  having  an  absolute  con- 
veyance, "  so,"  to  quote  Thomas's  own  words,  "  that  I  could  see 
that  the  taxes,  the  interest,  and  so  on,  were  paid  in  the  future, 
but  I  told  him  I  would  give  him  any  kind  of  a  paper  tliat  could 
be  drawn,  to  secure  him  the  jn'operty  back."  Stanton  assented 
to  this  arrangement,  and  in  execution  of  it,  on  the  21st  day  of 
January,  1862,  conveyed  the  lots  in  question  to  Thomas,  by  deed 
absolute  on  its  face ;  and  Thomas,  on  the  same  day,  executed  an 
agreement,  under  seal,  agreeing  to  reconvey  the  lots  to  Stanton 
or  to  his  wife,  or  to  any  other  person  he  might  name,  on  being 


6  Stew.]  OCTOBER  TERM,  1880.  173 

Foley  V.  Kirk. 

paid  his  debt.  The  agreement  provided  that  Stanton  should  re- 
tain possession  of  the  lots  and  take  their  rents  and  issues,  and 
pay  all  taxes,  assessments  and  water  rents,  and  that  the  interest 
on  his  debt  to  Thomas  should  be  paid  semi-annually,  and  that 
$200  of  the  principal  should  be  paid  at  the  end  of  three  years, 
$200  more  at  the  end  of  four  years,  and  the  balance  at  the  end 
of  five  years.  Two  days  afterwards  (January  23d,  1862),  Mon- 
tague assigned  the  four  declarations  of  sale,  issued  to  him  April 
30th,  1860,  to  Thomas,  and  also  executed  a  deed  to  Thomas  for 
one  of  the  lots.  This  deed  states  on  its  face  that  it  was  executed 
for  the  purpose  of  releasing  and  conveying  to  Thomas  any  right 
Montague  may  have  acquired  by  his  purchase  of  the  lot  at  two 
tax  sales  theretofore  made  by  the  city  authorities,  one  February 
8th,  1858,  and  the  other  May  16th,  1859. 

On  the  24th  of  November,  1862,  William  Stanton,  by  a 
writing  under  his  hand  and  seal,  assigned  to  the  defendant  all  his 
rights  under  his  contract  with  Thomas  for  a  reconveyance  of  the 
lots,  and,  by  the  same  writing,  directed  Thomas  to  convey  the 
lots  to  the  defendant.  The  defendant  swears  that  this  assign- 
ment was  made  in  execution  of  a  contract  he  had  made  with 
Stanton  for  the  purchase  of  the  lots,  with  other  lands,  at  the  price 
of  $7,200,  $5,000  of  which  was  the  price  he  had  agreed  to  give 
for  these  two  lots.  He  further  testifies  that  he  fully  understood, 
when  he  made  the  purchase,  that  the  deed  made  by  Stanton  to 
Thomas  was  not  intended  to  have  effect  as  a  deed,  but  was  meant 
to  have  effect  as  a  mortgage,  and  that  he  paid  Thomas,  in  satis- 
faction of  the  debt  secured  by  the  deed,  out  of  the  purchase- 
money  he  had  agreed  to  pay  to  Stanton,  the  sum  of  $2,580. 
Thomas,  in  fulfillment  of  his  contract  with  Stanton,  and  pursu- 
ant to  the  directions  contained  in  the  assignment,  conveyed  the 
two  lots  to  the  defendant  by  deed  dated  January  10th,  1863. 
The  defendant  also  testified  that  the  five  declarations  of  sale 
issued  to  Montague,  and  also  the  deed  made  by  Montague  to 
Thomas,  were  delivered  to  him  with  the  deed  from  Thomas  to 
him,  and  as  parts  of  his  muniments  of  title. 

Henry  Thomas  is  the  only  person  now  living  who  took  part  in 
the  transaction  of  January,  1862,  when  Montague's  tax  titles 


174  CASES  IN  CHANCERY.  [33  Eq. 

Foley  V.  Kirk. 

•were  paid  or  purchased,  and  Stanton  executed  the  deed  to  Thomas. 
Montague,  Stanton,  and  the  lawyer  under  whose  dii'ection  the 
business  was  done,  are  all  dead.  Mr.  Tliomas  has  been  examined 
as  a  witness.  He  swears  that  he  paid  the  taxes  to  Montague  for 
the  benefit  of  Stanton's  family  ;  that  the  amount  he  paid  was  in- 
cluded in  the  security  he  took  from  Stanton,  and  that  he  under- 
stood the  tax  sales  were  to  be  canceled  at  once. 

John  Stanton,  the  life  tenant,  died  October  13th,  1877.  The 
complainants  are  either  heirs  at  law  of  Ann  Stanton  or  stand  in 
the  title  of  her  heirs.  Shortly  after  John  Stanton's  death,  the 
complainants  brought  an  action  of  ejectment  against  the  defend- 
ant, to  recover  possession  of  the  two  lots  of  which  Ann  Stanton 
died  seized.  The  defendant  has  appeared  and  interposed  a  plea, 
and  in  this  case  he  has  made  no  attempt  to  deny  or  conceal  the 
fact  that  on  the  trial  of  the  action  of  ejectment,  he  intends  to  use 
the  declarations  of  sale  as  evidence,  and  to  insist  that  they,  iu 
connection  with  his  other  title  papers,  give  him  a  perfect  legal 
title  to  the  possession  of  the  two  lots  in  controversy,  for  a  long 
term  of  years. 

To  compel  the  surrender  and  cancellation  of  written  instru- 
ments which  have  spent  their  force,  and  are  mere  nullities,  but 
which,  left  in  an  uncanceled  state,  may  becloud  a  title,  or  be  used 
for  dishonest  purposes,  is  an  ancient  and  well-established  head 
of  equity  jurisprudence.  If  the  instrument  was  originally  valid, 
but  has,  by  subsequent  events,  such  as  satisfaction,  or  payment, 
or  other  extinguishment,  become  fundus  officio,  and  the  party 
holding  it  refuses  to  surrender  or  cancel  it,  the  court  will  compel 
its  surrender,  though  no  present  or  future  use  of  it,  to  the  preju- 
dice of  the  complainant,  is  threatened ;  for,  in  such  case,  its  mere 
existence  may  seriously  cloud  the  complainant's  title,  by  render- 
ing it  possible  that  ultimately  it  may  be  used  to  overthrow  his 
title,  when  the  facts  are  no  longer  capable  of  complete  proof,  or 
have  become  involved  in  the  obscurities  of  time.  1  Story's  Eq. 
Jur.  §  705.  Equity  may  intervene,  even  if  the  instrument  is 
void  by  matter  apparent  on  its  face,  and  would  be  so  held  at  law. 
But  it  will  not  arbitrarily  or  causelessly  change  the  forum  of 
litigation  when  an  action  at  law  is  already  pending,  and  ade- 


6  Stew.]  OCTOBER  TERM,  1880.  175 

Foley  V.  Kirk. 

quate  protection  can  be  given  in  that  forum,  but  if  adequate 
relief  cannot  be  given  at  law,  or  the  character  of  the  instrument 
is  such  that  the  court  can  see  that,  if  used  in  a  trial  at  law,  it  will 
be  liable  to  cause  embarrassment,  or  create  great  uncertainty,  or 
put  the  party  against  whom  it  may  be  used  in  great  hazard  of 
losing  his  just  rights,  it  will  assume  jurisdiction  and  compel  the 
surrender  of  the  instrument,  or  limit  its  use  to  such  purposes  as 
may  seem  to  it  to  be  equitable.  All  that  is  required  to  justify  a 
resort  to  equity,  when  a  suit  at  law  is  already  pending,  is,  that  it 
shall  appear  that  it  is  doubtful  whether  the  instrument  may  not 
be  used  in  such  suit  for  a  dishonest  or  inequitable  purpose. 
Hamilton  v.  Oummings,  1  Johns.  Ch.  517 ;  Coimish  v.  Bryan, 
2  Stock.  US;  Metier' s  Admrs.  v.  Metier,  3  C.  E.  Gr.  270 ; 
Metier  v.  Metier' s  Admrs.  J,,  C.  E.  Gr.  1^57 ;  Smith  v.  Smith,  3 
Stew.  Eq.  564.. 

There  can  be  no  doubt  about  what  will  be  the  line  of  defence 
which  the  defendant  will  pursue  in  defending  the  action  of  eject- 
ment. He  will  insist  that  the  deed  from  Stanton  to  Thomas, 
being  absolute  on  its  face,  must,  according  to  settled  rules  of  law, 
be  given  effect  according  to  its  terms,  and  that  its  terras,  in  a 
common  law  court,  cannot  be  changed  or  varied  by  proof  of  a 
parol  understanding  that  it  should  not  have  effect  as  an  absolute 
conveyance,  or  even  by  proof  of  a  cotemporaneous  written  agree- 
ment to  reconvey_  He  will  also  insist  that  as  Thomas  was  never 
under  any  duty  to  pay  the  taxes  and  assessments  for  which  the 
tax  sales  were  made,  he  had  an  indisputable  legal  right,  even 
after  he  had  acquired  title  to  the  life  estate,  to  purchase  an  out- 
standing tax  title,  and  that  such  purchase  did  not  enure  to  the 
benefit  of  the  remainder-men,  nor  operate  as  an  extinguishment 
of  the  tax  title ;  for  such  purchase  could,  in  no  sense,  be  charac- 
terized as  an  attempt  to  build  up  a  title  hostile  to  the  remainder- 
men, on  his  own  default.  I  think  it  may  well  be  doubted 
whether  the  purchase  of  a  tax  title,  under  the  circumstances 
stated,  could  be  regarded  in  a  court  of  law  as  a  violation  of  the 
principle  that  a  tenant  for  life  shall  not,  by  a  violation  of  his 
duty  to  pay  taxes,  be  permitted  to  acquire  the  estate  in  remainder. 
The  defendant  has  an  undoubted  right  in  a  court  of  law  to  stand 


176  CASES  IN  CHANCERY.  [33  Eq. 

Foley  V.  Kirk. 

in  the  strength  aud  vigor  of  Thomas's  title,  as  shown  by  the  title 
papers.  The  deed  from  Thomas  to  the  defendant  passed  all  the 
rights  which  Thomas  had,  whether  derived  from  Stanton  or 
Montague,  and  in  the  court  that  must  try  the  action  of  ejectment 
the  defendant  is  entitled  to  have  his  right  to  the  possession  of 
the  land  in  dispute  adjudged  by  what  is  written  in  his  title 
papers,  and  not  by  what  the  parties  to  them  intended.  The 
question  whether  the  deed  from  Stanton  to  Thomas  was  intended 
by  the  parties  to  be  a  mortgage,  or  an  absolute  conveyance,  is 
one  that  a  common  law  court  can  neither  hear  nor  determine. 
That  is  a  question  belonging  exclusively  to  equity  tribunals,  and 
over  which  common  law  tribunals  have  no  jurisdiction  whatever. 
And  so,  too,  the  very  important  question  in  this  case,  whether  the 
money  paid  by  Thomas  to  Montague  for  the  tax-titles,  was  the 
money  of  Stanton  or  of  Thomas,  or  was  subsequently  treated  by 
the  parties  as  the  money  of  Stanton  by  incorporating  it  in  the 
debt  which  the  deed  was  given  to  secure,  is  one  that  the  court 
which  must  try  the  action  of  ejectment  cannot  hear  and  adjudge. 
And  yet  it  is  manifest,  at  a  glance,  that  any  judgment  respecting 
the  rights  of  these  parties,  which  is  not  largely  controlled  by  the 
solution  which  these  questions  shall  receive,  must  fail  in  the 
accomplishment  of  justice.  This  consideration  is  decisive,  in 
my  judgment,  as  to  the  power  and  duty  of  this  court. 

The  decisive  question,  then,  on  the  merits,  is,  have  the  taxes 
on  which  the  declarations  of  sale  were  founded  been  paid,  so  that 
the  declarations  have  lost  all  force  as  evidences  of  title  ?  The 
oral  evidence  on  this  branch  of  the  case  is  free  from  contradic- 
tion. It  comes  entirely  from  one  source.  Mr.  Henry  Thomas 
is  the  only  person  now  living,  so  far  as  is  known,  who  can  give 
any  information  respecting  it.  He  swears,  as  has  already  been 
stated,  that  he  paid  the  taxes  on  which  these  declarations  of  sale 
were  founded,  for  the  benefit  of  Stanton's  family,  and  that  the 
amount  he  so  paid  was  afterwards  included  in  the  security  he 
took  from  Stanton.  If  this  evidence  is  believed,  the  declarations 
of  sale  possess,  in  equity,  no  more  force  as  evidences  of  title  than 
so  many  pieces  of  blank  pa^er.  It  is  true  they  were  not  can- 
celed when  the  taxes  were  paid,  as  Mr.  Thomas  says  it  was 


6  Stew.]  OCTOBER  TERM,  1880.  177 

Foley  V.  Kirk. 

understood  they  should  be ;  on  the  contrary,  they  were  trans- 
ferred to  Mr.  Thomas.  But  it  is  quite  clear,  I  think,  that  the 
transfers  were  not  made  for  the  purpose  of  building  up  or  keep- 
ing alive  a  title  hostile  to  that  of  William  Stanton.  Stanton  had 
appealed  to  Thomas  to  protect  him  against  a  danger  which 
threatened  his  possession,  and  Thomas  had  promised  to  help  him. 
This  put  Thomas  in  a  position  of  trust,  where,  if  he  acquired  the 
tax  titles,  he  was  bound  to  hold  them  for  the  benefit  of  Stanton. 
That,  I  have  no  doubt,  was  his,  purpose  in  taking  them.  The 
deed  and  assignments  from  Montague  were  simply  intended  by 
Thomas  to  augment  and  strengthen  his  security  for  his  debt. 
This  is  made  conspicuously  clear  by  his  agreement  to  reconvey. 
That  provided,  upon  being  paid  his  debt,  he  should  reconvey. 
His  deed  would,  of  course,  pass  his  whole  estate,  whether 
derived  from  Stanton  or  Montague,  and  all  parties  were  bound 
to  know  that  the  moment  Stanton  paid  the  taxes,  upon  which 
the  declarations  of  sale  were  founded,  the  tax  titles  were  extin- 
guished forever.  The  evidence,  considered  as  a  whole,  permits 
but  one  conclusion,  namely,  that  Thomas  paid  the  taxes  with 
Stanton's  money  and  took  an  assignment  of  the  tax  titles,  not  to 
preserve  a  hostile  title,  but  solely  to  increase  and  fortify  his 
security  for  his  debt. 

In  this  condition  of  affairs,  it  is  obvious  the  moment  Stanton 
paid  his  debt  to  Thomas,  the  tax  titles  became  mere  nullities. 
That  debt  was  paid  by  Stanton  in  January,  1863.  This  fact  is 
proved  by  the  defendant's  own  oath.  He  says  he  purchased  the 
two  lots  in  dispute  of  William  Stanton,  in  November,  1862,  for 
$5,000,  and  of  this  sum,  he  paid  to  Thomas,  in  January,  1863, 
in  satisfaction  of  Stanton's  debt,  the  sum  of  $2,580.  He  knew, 
at  the  time  he  made  this  payment,  and  also  when  he  made  the 
contract  of  purchase,  that  Thomas  held  the  land  not  as  owner, 
but  merely  by  way  of  mortgage,  and  simply  as  security  for  his 
debt.  This  payment  operated  as  a  complete  extinguishment  of 
the  tax  titles.  Even  if  Stanton  had  intended  to  preserve  the  tax 
titles,  and  that  his  payment  to  Thomas  should  have  effect  as  a 
purchase,  and  not  as  a  payment  in  extinguishment  of  the  taxes, 
the  law  would  not  permit  him  to  accomplish  his  purpose,  for  the 

12 


178  CASES  IN  CHANCERY.  [33  Eq. 

Foley  V.  Kirk. 

principle  is  universal  that  a  purchase  by  one  whose  duty  it  was 
to  pay  the  taxes,  shall  operate  only  as  an  extinguishment.  One 
man  can  acquire  no  rights  against  another  by  a  neglect  of  a  duty 
which  he  owes  to  the  other.     Cooley  on  Tax.  31{B. 

The  declarations  of  sale  must  be  declared  to  be  nullities,  and 
inasmuch  as  their  production  in  evidence  on  the  trial  of  the  action 
of  ejectment  may  unjustly  imperil  the  rights  of  the  complainants, 
their  surrender  and  cancellation  must  be  decreed. 

The  defendant,  however,  insists  that  such  decree  should  not  be 
made  except  upon  terms.  He  says  when  he  purchased  of  Wil- 
liam Stanton  he  believed  Stanton  held  the  lots  in  dispute  in  fee, 
and  continued  to  believe  so  until  1875  or  1876,  and  that,  in  the 
meantime,  he  had,  in  good  faith,  made  large  expenditures  in 
permanent  improvements,  which  add  greatly  to  the  present  value 
of  the  land,  and  which  the  complainants  will  take  if  he  is  ejected. 
He  insists  that  the  complainants  should  not  be  allowed  to  recover 
possession  until  they  have  made  reasonable  compensation  for 
such  improvements.  There  can  be  no  dispute  that  it  is  a  well- 
established  doctrine  of  equity  that  where  a  party  lawfully  in  the 
possession  of  land,  under  a  title  which  turns  out  to  be  defective, 
makes  permanent  improvements,  in  good  faith,  before  he  has 
notice  that  his  title  is  defective,  which  materially  increase  the 
value  of  the  inheritance,  and  the  actual  owner  afterwards  seeks 
relief  against  him  in  equity,  relief  will  not  be  given  except  upon 
equitable  terms.  ^  Slory^s  Eq.  Jur.  §  1^37.  But  there  are  two 
reasons,  I  think,  why  this  rule  cannot  be  applied  to  this  case. 
First,  it  is  not  yet  determined  which  of  these  parties  is  entitled 
to  the  possession  of  the  lands  in  dispute,  and  this  court  has  no 
jurisdiction  over  that  question.  It  is  clear  the  defendant  is,  in 
no  event,  entitled  to  compensation  from  the  complainants  until 
their  right  to  possession  is  established.  This  court  cannot  antici- 
pate the  judgment  which  may  finally  be  pronounced  in  the  action 
of  ejectment,  or  make  a  provisional  decree,  which  shall  give  or 
deny  relief  to  the  defendant,  according  as  the  suit  at  law  may  be 
decided  against  him  or  for  him. 

Second,  the  proofs,  as  I  view  them,  fail  to  show  satisfactorily, 
that  the  defendant's  mistake  (conceding  now  that  he  acted  under 


6  Stew.]  OCTOBER  TERM,  1880.  179 

Foley  V.  Kirk. 

a  mistake)  was  uot  the  result  of  his  own  inexcusable  negligence. 
The  title  to  the  lands  in  controversy,  long  prior  to  the  defend- 
ant's purchase,  had  been  the  subject  of  both  legislative  and 
judicial  investigation.  On  the  death  of  Ann  Stanton's  first 
liusband,  Barney  Colgan,  these  lands  escheated,  and  the  right  of 
the  state  was  afterwards  ceded  to  her  by  the  name  of  Ann  Colgan, 
by  special  act  of  the  legislature,  approved  March  8th,  1836. 
P.  L.  of  1836 p.  820.  The  title  thus  conferred  upon  her  was  after- 
wards disputed,  by  suit,  by  two  of  her  husband's  alien  brothers. 
Their  suit  was  tried  in  the  Hudson  circuit  court,  in  December, 
1853,  and  resulted  in  a  verdict  in  tlieir  favor,  but  was  subse- 
quently decided  against  them  by  the  supreme  court.  Colgan  v. 
McKeon,  4-  Zab.  566.  The  defendant,  in  procuring  title,  called 
to  his  aid  a  lawyer  of  experience  and  learning,  who,  I  have  no 
doubt,  was  perfectly  familiar  with  the  legal  history  of  this  title, 
and  who,  it  is  difficult  to  believe,  did  not  impart  to  the  defend- 
ant all  that  he  knew  concerning  it.  The  defendant,  however, 
says  he  did  not.  But  he  also  says  that  he  did  nothing  whatever 
t<3  ascertain  the  extent  or  quantity  of  Stanton's  estate.  He 
believed,  he  says,  because  Stanton  was  in  possession,  and  he  had 
never  heard  anything  to  the  contrary,  that  Stanton  owned  the 
lands  in  fee,  but  he  freely  admits  that  he  made  no  inquiry,  nor 
search,  nor  investigation  or  exploration  of  any  kind.  To  a  ques- 
tion requiring  him  to  give  the  reasons  why  he  believed  Stanton 
nad  a  fee,  he  made  this  extraordinary  answer :  "  I  was  not  pay- 
ing all  the  money  down  in  a  lump ;  I  was  paying  him  gradually, 
and  if  I  discovered,  at  any  time  before  he  got  the  full  amount, 
that  anything  was  wrong,  I  could  stop."  His  mistake,  if  any, 
in  fact,  existed — and  I  am  free  to  say  I  think  there  is  grave  rea- 
son to  doubt — was  manifestly  the  result  of  the  most  reckless 
carelessness.  The  observance  of  any  degree  of  care,  or  the  prac- 
tice of  the  least  caution,  would  have  made  it  impossible  for  him 
to  fall  into  any  error.  Mistakes  committed  under  such  circum- 
stances cannot  be  made  the  basis  of  relief  in  equity.  Haggerty 
V.  McCanna,  10  C.  E.  Gr.  4B. 

The  defendant  also  insists  that  he  should  not  be  required  to 
surrender  the  two  declarations  of  sale  founded  on  assessments  for 


180  CASES  IN  CHANCERY.  [33  Eq. 


Foley  V.  Kirk. 


the  construction  of  a  sewer,  except  on  condition  that  the  com- 
plainants first  pay  him  such  parts  thereof  as  are  properly  charge- 
able against  the  estate  in  remainder.  A  tenant  for  life  must  pay 
ordinary  taxes.  That  rule  is  not  open  to  discussion.  But  an 
assessment  for  the  cost  of  a  local  improvement,  which  increases 
the  value  of  the  inheritance,  stands  on  a  different  footing.  With 
respect  to  such  impositions,  the  tenant  for  life  has  a  right  to  ask 
for  an  apportionment.  According  to  the  rule  adopted  in  Massa- 
chusetts and  New  York,  the  tenant  for  life  is  required  to  con- 
tribute to  the  extent  of  interest  during  his  life  on  the  amount 
paid,  and  at  his  death  the  remainder-man  must  bear  the  charge 
of  the  principal,  and  thus  they  are  made  to  share  the  burden  in 
the  same  proportions  in  which  they  would  share  the  benefits  of 
an  assessment  for  damages  in  their  favor.  Plympton  v.  Boston 
Dispensary,  106  Mass.  S4-4-f  StUwell  v.  Dqicghty,  2  Brad.  311. 
But  what  right  has  the  defendant  to  ask  for  an  apportion- 
ment, or  to  be  repaid  any  part  of  the  sewer  assessments  ?  He 
did  not  pay  them,  nor  has  he  shown  any  title  or  authority  en- 
titling him  to  stand  in  the  rights  of  the  person  who  did  pay 
them.  According  to  the  defendant's  own  evidence  they  were 
paid  with  Stanton's  money,  with  money  which  he  had  agreed  to 
pay  Stanton  for  the  land.  Stanton  may  have  a  right  to  ask  for  an 
apportionment,  and  to  be  re-imbursed,  but  the  defendant  cer- 
tainly has  no  such  right. 

The  complainants  are  entitled  to  a  decree  without  conditions 
or  terms,  and  that  the  defendants  pay  their  costs. 


6  Stew.]  OCTOBER  TERM,  1880.  181 

McGregor  v.  Home  Insurance  Co.  of  Newark. 

JoHX  McGregor  et  al. 

V. 

The  Home  Insurance  Company  of  Newark,  New  Jersey. 

1.  Where  preferred  stock  is  issued  under  a  contract  or  law  containing  no 
provision  or  direction  as  to  what  shall  be  the  rights  of  the  holders  of  it  in  the 
distribution  of  capital  when  the  affairs  of  the  company  are  wound  up,  such 
stock  merely  has  a  right  to  be  preferred  in  the  division  of  profits,  and  not  in 
the  distribution  of  capital. 

2.  The  general  corporation  act  of  this  state  directs  that  in  the  distribution 
of  capital  the  holders  of  preferred  stock  shall  be  first  paid,  before  any  distri- 
bution is  made  to  the  holders  of  the  common  stock ;  therefore  preferred  stock 
issued  in  this  state,  either  under  authority  of  law  or  under  a  contract  of  which 
the  law  forms  a  part,  is  entitled  to  preference  in  the  distribution  of  capital. 

3.  Dividends  on  preferred  stock  can  only  be  paid  out  of  the  profits ;  and 
this  is  so  even  when  the  stock  is  issued  under  a  guaranty  that  a  dividend  of 
a  certain  sum  shall  be  paid  annually. 

4.  The  rule  of  distribution  presented  by  the  corporation  act  must  be  ob- 
served, whether  the  affairs  of  a  corporation  are  wound  up  by  the  court  or  the 
officers  of  the  corporation. 

5.  A  thing  which  is  within  the  intention  of  the  makers  of  a  statute,  is  as 
much  within  the  statute  as  if  it  were  within  its  letter. 


On  application  for  injunction.  Heard  on  bill,  answer  and 
order  to  show  cause. 

3Ir.  Joseph  CouU,  for  motion. 
Mr.  J.  F.  Fort,  contra. 

The  Vice-Chancellor. 

This  is  an  application  for  an  injunction.  The  complainants 
are  stockholders  of  the  Home  Insurance  Company  of  Newark, 
a  corporation  which  has  ceased  to  do  business,  and  is  in  process 
of  being  wound  up  by  its  officers.  The  particular  grievance  of 
which  the  complainants  complain  is  the  division  or  distribution 
which  the  officers  propose  to  make  of  the  assets  which  remain 
for  division  amon<r  the  stockholders. 


182  CASES  IN  CHANCERY.  [33  Eq. 

McGregor,  v.  Home  Insurance  Co.  of  Newark. 

This  corporation  was  organized  in  1874,  under  a  special  charter 
granted  in  1869.  It  was  organized  with  a  capital  of  §100,000, 
"which  was  afterwards  increased  to  §200,000.  In  January,  1878, 
it  was  found  that  its  reserve  fund,  which  it  was  required  by  law 
to  keep  intact,  was  impaired  to  the  extent  of  nearly  §30,000. 
To  restore  this  fund,  so  as  to  avoid  being  compelled  to  go  into 
liquidation,  the  officers  of  the  corporation  devised  this  plan : 
each  stockholder  should  surrender  one-fourth  of  his  stock,  thus 
reducing  the  capital  from  §200,000  to  §150,000,  and  when  this 
was  done,  to  issue  preferred  stock  for  the  stock  retired.  The 
complainants  agreed  to  surrender,  and  did  surrender,  their  stock, 
and  accepted  new  certificates  for  three-fourths  of  the  number  of 
shares  originally  issued  to  them.  They  also  signed  an  agree- 
ment, dated  April  17th,  1878,  authorizing  the  issue  of  §50,000 
of  preferred  stock.  By  this  agreement  they  stipulated  that  this 
stock  should  be  subject  to  redemption,  at  par,  in  ten  years  from 
July  1st,  1878,  and  should  also  be  entitled  to  a  semi-annual 
dividend  of  four  per  cent.,  and  also — to  quote  the  words  of  the 
agreement — that  "such  stock,  when  issued,  shall  be  legal  and 
valid,  the  same  as  if  made  and  issued  pursuant  to  the  charter 
or  any  law  of  this  state."  Pursuant  to  this  agreement,  the  pre- 
ferred stock  authorized  by  it  was  afterwards  taken  and  paid  for, 
and  two  dividends  paid  on  it.  The  answer,  in  response  to  an 
interrogatory  put  by  the  bill,  avers  that  the  subscribers  to  this 
stock  took  it  upon  a  representation  that  it  should  be  paid  in  full 
before  any  distribution  was  made  to  the  common  stock. 

Note. — The  case  of  Kent  v.  Quicksilver  Mining  Co.,  78  N.  Y.  159,  on  appeals 
from  S.  C.  12  Hun  53,  and  from  Hoyt  v.  Quicksilver  Mining  Co.,  17  Hun  169, 
fully  discusses  the  question  as  to  the  power  of  corporate  directors,  or  of  a  ma- 
jority of  the  stockholders,  to  create  and  issue  preferred  stock,  so  as  to  bind  the 
minority  not  assenting  to,  or  acquiescing  in,  such  act,  and  denies  such  general 
power,  whether  attempted  to  be  exercised  as  a  means  of  securing  money 
borrowed  for  the  use  of  the  corporation  or  otherwise.  Folger,  J.,  says,  on  page 
181:  "Citations  are  made  to  us  for  the  converse  of  this;  but  they  do  not  come 
up — sometimes  in  their  facts,  sometimes  in  their  declarations — to  the  necessity 
of  the  proposition.  Either  it  is  where  the  capital  b  not  limited,  and  it  is  new 
shares  that  may  be  issued  with  a  preference,  and  wjiere  there  is  express  power 
to  borrow  on  bond  and  mortgage  (^  Red/,  on  R'ways,  chap.  33  sec.  4  ?  237 ; 
Harrison  v.  Mex.  R.  W.,  IS  Eng.  Rep.  793) ;  or  the  amount  of  the  capital  has 


6  Stew.]  OCTOBER  TERM,  1880.  181 

McGregor  i;.  Home  Insurance  Co.  of  Newark. 


The  corporation  suspended  business  about  the  1st  of  April, 
1879,  and  on  the  14th  of  that  month  its  directors  passed  a  reso- 
lution to  dissolve  and  wind  up.  This  action  was  sanctioned  and 
approved  by  more  than  two-thirds  in  interest  of  all  the  stock- 
holders, at  a  general  meeting  of  the  stockholders  legally  called 
and  held  May  21st,  1879.  Since  then,  the  directors  have  pro- 
ceeded far  enough  in  the  work  of  winding  up  to  find  that,  after  the 
debts  and  liabilities  are  paid,  it  is  not  probable  sufficient  assets 
will  be  left  to  return  to  the  holders  of  the  preferred  and  common 
stock  its  full  par  value.  They  have  already  paid  to  the  holders 
of  the  preferred  stock  the  full  par  value  of  their  shares,  believing, 
as  a  matter  of  law,  that  they  were  entitled  to  such  preference  in 
the  division  of  the  capital  of  the  corporation.  An  injunction  is 
asked  to  restrain  any  further  distribution  until  the  relative 
rights  of  the  two  classes  of  stockholders  shall  have  been  deter- 
mined. The  bill  seeks  an  injunction  also  on  other  grounds, 
but  they  seem  to  me  to  be  so  effectually  overcome  by  the  answer 
as  to  dispense  with  their  consideration. 

The  question  is  one  of  contract.  The  rights  of  the  complain- 
ants must  be  determined  by  the  contract.  They  are  not  in  posi- 
tion to  dispute  the  validity  of  the  issue  of  the  preferred  stock. 
It  was  issued  with  their  sanction,  and  under  their  covenant  and 
assurance  that  it  should  have  the  same  validity  as  if  issued  pur- 
suant to  law.     They  must  abide  by  their  promise. 

I  think  it  must  be  admitted,  according  to  the  general  current 
of  authority,  that  preferred  stock,  in  the  absence  of  an  express 

not  been  reached,  and  such  slock  is  issued  therefrom  {Hazelhurst  v.  Savannah 
'  R.  R.,  43  Ga.  52 ;  Lothan  v.  Tison,  54  Id.  139) ;  or  there  was  legislative 
authority  {Davis  v.  Proprietors,  8  Mete.  321 ;  Rutland  R.  R.  Co.  v.  Thrall,  35 
Vt.  545) ;  or  a  restriction  to  authorized  capital,  and  there  was  unanimous  con- 
sent of  the  stockholders  {Prouty  v.  U.  S.  and  N.  I.  R.  R.,  1  Hun  663;  43  Ga. 
SS,  supra) ;  or  there  was  power  to  redeem,  which  was  a  transaction  in  the 
nature  of  a  debt  ( Westchester  &c.  R.  R.  Co.  v.  Jackson,  77  Pa.  St.  S21) ;  or 
the  opinion  was  obiter  {Bates  v.  Androscoggin  R.  R.  Co.,  49  Maine  491) ;  or  it 
was  the  case  of  a  subscription  for  stock,  with  a  condition  for  interest  until  the 
corporation  was  in  operation  {Richardson  v.  Vt.  and  Mass.  R.  R.  Co.,  44  Vt. 
G13) ;  or  it  was  an  action  on  a  subscription  more  favorable  to  defendant  than 
to  other  subscribers,  and  it  was  held  that  defendant  could  not  set  up  the  lack 
of  equality  {Evansville  R.  R.  Co.  v.  Emnsville,  15  Lid.  305) ;  or  a  solemn  de- 


184  CASES  IN  CHANCERY.  [33  Eq. 

McGregor  r.  Home  Insurance  Co.  of  Newark. 

stipulation  or  direction  to  the  contrary,  simply  gives  the  holder  a 
right  of  preference  in  the  division  of  profits,  and  not  in  the  dis- 
tribution of  capital.  And  even  when  it  is  issued  under  an 
agreement  or  guarantee  that  a  dividend  of  a  fixed  sum  shall  be 
paid  on  it  annually,  such  dividend  can  only  be  paid  out  of  net 
earnings  or  profits ;  and  if  no  profits  are  made,  no  dividend  can 
be  paid.  Loekhart  v.  Van  Alstyne,  31  Mich.  76,  14-  Am.  L.  R. 
{N.  S.)  180 ;  Tafi  v.  Hartford,  Providence  and  Fishkill  R.  R. 
Co.,  8  R.  I.  310,  5  Am.  Rep.  575.  This  question  has  been  pre- 
sented for  the  consideration  of  the  courts  only  in  a  few  histances, 
but  the  adjudications  are  harmonious  and  decisive.  In  re  London 
India  Rubber  Co.,  L.  R.  [5  Eq.  Cas)  519,  two-thirds  of  the  stock 
issued  was  preferred.  The  articles  of  association  provided  that  as 
soon  as  tlie  holders  of  the  preferred  stock  should  have  received  out 
of  the  profits  a  sum  amounting  in  the  whole  to  tiie  total  capital 
which  had  been  paid  up  on  their  shares,  together  with  interest  or 
dividend,  at  the  rate  of  seven  and  one-half  per  cent,  per  annum, 
the  preferred  and  common  stock  should  be  amalgamated,  and 
the  holders  of  each  should  thereafter  participate  equally  in  the 
profits,  and  all  distinction  between  the  shares  should  cease.  It 
was  further  provided  that  until  the  amalgamation  took  place,  the 
holders  of  the  common  stock  should  have  no  right  to  vote  at  any 
general  meeting  of  the  stockholders,  except  upon  the  question 
whether  the  capital  of  the  company  should  be  increased  or  not. 
In  deciding  how  the  surplus  assets  should  be  distributed  among 
tlie  stockholders,  Vice-Chancellor  Malins  held  that  their  rights 

termination  of  this  question  was  not  necessary  for  the  disposal  of  the  case 
(  WiUiston  V.  U.  S.  and  N.  I.  R.  R.  Co.,  13  Allen  4OO) ;  or  the  issue  was  author-- 
ized  by  the  articles  of  association  {In  re  AD.  St.  Nav.  and  Col.  Co.,  20  L.  R- 
{Eq.)  339) ;  or  there  was  full  knowledge  on  the  part  of  all  concerned  {Loekhart 
V.  Van  Alstyne,  31  Mich.  81)  •  or  the  power  in  the  corporate  body  was  conceded, 
and  it  was  denied  that  it  existed  in  tlie  directors  {McLaughlin  v.  D.  and  M. 
R.  R.,  8  Id.  100)." 

See,  further,  Stevens  v.  South  Devon  Co.,  9  Hare  312  ;  Henry  v.  Great  Norlhern 
Co.,  1  DeG.&  J.  606  ;  Sturge  v.  Ea.^tem  Union  Co.,  6  De  G.  M.  &  G.  158;  Coey 
V.  Belfast  R.  R.  Co.,  Ir.  L.  R.  {2  Com.  Law)  112;  Dickinson  v.  C.  and  0.  R.  R-, 
7  W.  Va.  390;  Bi-yant  v.  Ohio  College,  1  Cin.  S.  C.  67;  Covington  v.  Covington 
Bridgt  Co.,  10  Bush  69;  King  v.  Ohio  and  Miss.  R.R,9  Reporter  431;  Green's 
Briefs  Ultra  Vires  {2d  Am.  ed.)  I64.—RY.V. 


6  Stew.]  OCTOBER  TERM,  1880.  185 

McGregor  v.  Home  Insurance  Co.  of  Newark. 

tlid  not  depend  upon  any  abstract  notions  of  justice,  but  must  be 
determined  by  the  contract  into  which  they  had  entered ;  that 
their  contract  made  no  provision  for  a  distribution  of  assets,  in 
case  it  became  necessary  to  wind  up  the  corporation,  but  simply 
regulated  their  rights  in  the  corporation  as  a  going  concern,  and 
that  the  only  distinction  it  made  between  the  two  classes  of  share- 
holders was  that  it  gave  the  preferred  stock  a  preference  in  the 
division  of  profits.     His  conclusion  is  thus  expressed  : 


"  I  wish  it  understood  that  I  decide  the  case  upon  this  principle :  that  where 
there  is  a  provision  for  a  preferential  dividend,  but  no  provision  for  the  di- 
vision of  capital  upon  the  breaking  up  of  the  concern,  any  surplus  must  be 
distributed  amongst  the  shareholders  according  to  their  capital,  without  refer- 
ence to  their  rights  in  respect  of  dividend." 

The  present  master  of  the  rolls.  Sir  George  Jessel,  in  deciding 
the  same  question,  likened  the  relation  between  the  two  classes 
of  stockholders  to  the  relation  existing  between  copartners.  He 
said  : 

"  If,  in  an  ordinary  commercial  partnership,  one  or  more  of  the  partners  has 
a  larger  share  of  the  profits  than  is  the  proportion  borne  by  his  share  of  the 
capital  to  the  capital  of  the  others,  *  *  *  that  privilege  ceases  when  the 
partnership  is  dissolved.  *  *  *  When  the  partnership  comes  to  an  end, 
the  right  to  the  share  of  the  profits  comes  to  an  end  also ;  and  you  distribute 
the  assets,  after  providing  for  the  profits  earned  up  to  the  time  of  dissolution, 
in  proportion  to  the  partners'  shares  of  the  partnership  capital." 

He  held  that  the  same  rule  should  be  adopted  in  distributing 
the  surplus  assets  of  a  defunct  corporation.  Aside  from  the 
right  of  preference  in  the  division  of  the  profits,  he  held  that 
the  position  of  all  the  shareholders  is  exactly  the  same.  He 
added : 

"The  result,  therefore,  is  that  when  a  dissolution  arrives,  and  no  more  profits 
are  earned,  all  the  shareholders  stand  in  exactly  the  same  position,  and  are 
entitled  to  the  capital  pro  rata."     Griffith  v.  Paget,  L.  B.  {6  Ch.  Dlv.)  511. 

The  same  views  were  expressed  by  Malins,  V.  C,  In  re  Bangor 
and  Pwtmadoc  Slate  and  Slab  Co.,  L.  R.  {W  Eq.  Cas.)  59. 


186  CASES  IN  CHANCERY.  [33  Eq. 

McGregor  v.  Home  Insurance  Co.  of  Newark. 

There,  however,  the  preferred  shareholders  were  held  to  be  entitled 
to  be  first  paid,  because  that  course  of  distribution  was  clearly 
directed  by  the  articles  of  association. 

These  authorities  establish  the  doctrine  that  the  rights  of  the 
two  classes  of  stockholders,  in  such  cases,  must  be  determined  by 
their  contract,  and  that  unless  that  gives  a  preference  in  the  distri- 
bution of  capital,  the  surplus  assets  must  be  distributed  equally 
among  all  the  stock.  AVhat,  then,  are  the  rights  of  the  parties 
under  this  contract?  The  contract  contains  no  express  direction 
upon  the  subject.  It  simply  provides  for  the  issuing  of  preferred 
stock,  and  that  such  stock,  when  issued,  shall  be  legal  and  valid, 
the  same  as  if  issued  pursuant  to  law.  It  puts  the  stock  on  the 
footing  of  preferred  stock  issued  by  authority  of  law,  and  makes 
the  law  a  part  of  their  arrangement.  What,  then,  are  the  rights, 
in  this  respect,  of  holders  of  preferred  stock  issued  by  authority 
of  the  law  of  this  state?  The  main  purpose  to  be  accomplished 
in  construing  a  contract  is  to  give  effect  to  the  intention  of  the 
parties — to  give  effect  to  what  both  understood,  or  should  have 
understood.  It  is  to  be  presumed  always  that  the  parties  have 
made  their  contract  with  reference  to  the  lex  loci;  and  if  they 
have  used  terms  or  phrases  having  a  settled  meaning  in  the  local 
law,  it  must  also  be  presumed  that  they  used  them  in  their  legal 
signification.  It  is,  therefore,  always  the  duty  of  the  court,  in 
expounding  a  contract,  to  consider  the  law  prevailing  at  the  place 
where  the  contract  was  made.  Here  the  parties  have  made  the 
law  a  part  of  their  contract. 

Prior  to  the  time  when  this  contract  was  made,  our  legislature 
had  declared  and  defined  what  should  be  the  rights  of  a  preferred 
stockholder  in  the  distribution  of  the  capital  of  a  defunct  cor- 
poration. The  eightieth  section  of  the  general  corporation  act, 
in  directing  how  the  surplus  assets  of  a  corporation,  wound  up 
under  that  act,  shall  be  distributed  by  this  court,  declares  that 
"  the  surplus  funds,  if  any,  after  payment  of  creditors,  and  costs 
and  expenses,  and  the  pi-efei-red  stockholders,  may  be  divided  and 
paid  to  the  general  stockholders  proportionally,  according  to 
their  respective  shares."  Rev.  191.  This  I  regard  as  a  legisla- 
tive declaration  of  what  are  the  rights  of  the  holders  of  pre- 


6  Stew.]  OCTOBER  TERM,  1880.  187 

McGregor  v.  Home  Insurance  Co.  of  Newark. 

ferred  stock,  when  the  law  or  contract  under  which  the  stock  is 
issued  does  not  in  any  way  limit  or  restrict  them.  So,  I  infer, 
it  is  understood  by  the  court  of  errors  and  appeals.  Mayer  v. 
Attorney- General,  5  Stew.  Eq.  815.  It  is  quite  obvious,  I  think, 
from  the  remarks  of  Vice-Chancellor  Malins,  In  re  London 
India  Rubber  Co.,  L.  R.  {5  Eq.  Cas.)  519,  that  had  the  English 
statute  contained  a  similar  direction,  he  would  have  felt  himself 
bound  by  it,  and  would  have  been  compelled  to  pronounce 
a  judgment  the  exact  opposite  of  that  which  he  did  pronounce. 
The  officers  of  the  corporation  unquestionably  understood  the 
contract  in  accordance  with  its  legislative  interpretation,  for  they 
say  that  in  procuring  subscriptions  to  this  stock,  they  represented 
that  it  should  be  paid  in  full,  before  anything  was  distributed 
to  the  common  stock. 

In  view  of  this  statute,  I  think  it  must  be  adjudged  that,  by 
the  proper  construction  of  the  contract  under  consideration,  the 
holders  of  the  preferred  stock  of  this  corporation  are,  in  the 
distribution  of  capital,  to  be  first  paid.  The  court  has  nothing 
to  do  with  the  wisdom  or  policy  of  this  statute.  It  is  possible, 
if  the  legislature  had  had  the  aid  of  the  arguments  made  upon 
this  question  by  Yice-Chancellor  Malins  and  Sir  George  Jessel, 
a  different  mode  of  distribution  would  have  been  prescribed  ; 
but  it  is  their  province  to  make  the  law,  and  the  court  must 
restrict  itself  to  the  duty  of  expounding  and  enforcing  it. 

The  fact  that  this  corporation  is  being  wound  up  by  its  officers, 
and  not  under  the  direction  of  this  court,  does  not  alter  the 
rights  of  the  parties  nor  change  the  method  of  distribution.  The 
primary  object  of  the  statute,  so  far  as  it  affects  stockholders, 
was  to  define  their  rights ;  and  the  rule  it  prescribes  upon  that 
subject  must  be  taken  as  the  measure  of  their  rights,  whether 
they  are  wrought  out  by  the  court  or  through  some  other  instru- 
mentality. A  thing  which  is  within  the  intention  of  the  makers 
of  a  statute  is  as  much  within  the  statute  as  if  it  were  within 
the  letter.  ^  Bac.  Abr.  6^  {Stat.  I.^4£);  Oates  v.  National 
Rank,  100  U.  S.  £39. 

The  complainants  are  not  entitled  to  an  injunction,  and  the 
order  to  show  cause  must  therefore  be  dismissed,  with  costs. 


188  CASES  IN  CHANCERY.  [33  Eq. 


Jones  V.  KiKuiss. 


John  K.  Jones  et  al. 

V. 

William  H.  Kxauss. 

A  complainant  who  is  a  non-resident  will  not  be  required  to  give  security 
for  costs,  if  he  is  joined  with  a  resident  complainant. 


On  motion  to  discharge  order. 
Mr.  Benjamin  C.  Potts,  for  motion. 
Mt:  F.  H.  Pilch,  contra. 

The  Vice- Chancellor. 

This  is  a  motion  to  discharge  an  order  requiring  the  complain- 
ants to  give  security  for  costs,  and  staying  all  proceedings  until 
it  be  given.  There  are  three  complainants,  two  resident  in  this 
state,  and  the  other  a  resident  of  Pennsylvania. 

The  practice  seems  to  be  settled  against  the  defendant's  right 
to  security  in  such  a  case.  A  complainant  who  is  a  non-resident 
will  not  be  required  to  give  security  for  costs,  if  he  is  joined  with 
a  resident  complainant.  1  Hoffman's  Ch.  Pr.  204-;  1  Dan.  Ch. 
Pr.  28;  1  Smith's  Ch.  Pr.  555 ;  Winthrop  v.  Royal  Ass.  Co., 
1  Dick.  282 ;  Walker  v.  Easterby,  6  Ves.  612.  In  the  case  last 
cited,  the  reason  given  by  Lord  Eldon  for  the  rule  is  this  :  That 
where  one  of  the  complainants  is  within  the  jurisdiction,  as  each 
is  bound  for  the  whole  costs,  the  defendant  has  security.  There, 
there  were  two  complainants,  one  resident  within  the  jurisdiction, 
and  the  other  not ;  an  order  for  security  was  obtained  ex  parte, 
and  subsequently  a  motion  was  made  to  discharge  it,  on  the 
ground  that  it  had  been  improperly  granted.  Lord  Eldon  dis- 
charged it,  but  without  costs. 

The  order  in  this  case  having  been  made  contrary  to  the  estab- 
lished practice,  must  be  discharged. 

Note. — Statutes  requiring  non-resident  parties  to  actions  to  give  security  for 
costs,  are  constitutional,  {Nease  v.  Capehart,  15  W.  Va.  299 ;  Haney  v.  Mar- 


6  Stew.]  OCTOBER  TERM,  1880.  189 

Jones  V.  Knauss. 

shall,  9  Md.  194;  Conley  v.   Woonsocket,  11  B.  I.  14'^;  see  Oatman  v.  Bond, 
15  Wis.  SO). 

The  cases  uniformly  hold  that  where  one  of  several  parties  is  a  resident, 
security  cannot  be  demanded  {Anon.  7  Taunt.  S07 ;  Anon.  2  Or.  &  Jer.  88,  1 
Bowl.  P.  C.  300  ;  Bawden  v.  Roe,  1  Bodges  31b  ;  Thomel  v.  Boelants,  2  C.  B. 
S90 ;  Anon.  Penning.  SS6 ;  Jemison^s  Case,  31  Ala.  392 ;  Thalman  v.  Barbour, 
6  Ind.  178 ;  Zimmerman  v.  Mendenhall,  2  Miles  402 ;  Mayer  v.  Tyson,  1  Bland 
664) ;  even  when  the  resident  party  is  insolvent  (MeConnell  v.  Johnston,  1  East 
431 ;  Reddkk  v.  Sinnoit,  1  Hud.  &  Bro.  204;  Peterson  v.  Smith,  5  Hal.  192 ; 
Pfister  V.  Gillespie,  2  Johns.  Gas.  109 ;  Ten  Broeck  v.  Reynolds,  13  How.  Pr. 
462;  see  Wood  v.  Goss.  24  III.  6S6). 

The  same  rules  apply  wliere  a  suit  is  brought  in  the  name  of  a  non-resident 
plaintiff  for  the  benefit  or  use  of  a  resident  (  Youde  v.  Youde,  3  A.  &  E.  311 ; 
Seward  v.  Wilson,  1  Scam.  192 ;  but  see  Lewis  v.  Lewis,  25  Ala.  315 ;  Bush's 
Case,  29  Ala.  50 ;  Caton  v.  Hai-mon,  1  Seam.  581 ;  (yConnell  v.  Rea,  51  III.  306), 
Aliter,  where  the  suit  is  brought  by  a  resident  plaintiff  for  tlie  use  of  a  non- 
resident [Buchnaster  v.  Beames,  8  III.  1 ;  Smith  v.  Rosseler,  11  III.  119  ;  Ingles 
V.  Hume,  3  B.  Mon.  33 ;  Palmer  v.  Hicks,  17  Ark.  505 ;  but  see  Charles  v. 
Waierman,  2  How.  Pr.  122;  Morgan  v.  Hale,  12  W.  Va.  713;  Gookin  v.  Up- 
ham,  22  N.  H.  38;  Burker  v.  Hutchinson,  7  Ir.  Eq.  508;  Swift  v,  Collins,  1 
Denio  659). 

Non-resident  executors  and  administrators  must  give  security  {Chamberlain 
V.  Chamberlain,  1  Bowl.  P.  C.  366 ;  Shaw  v.  Bempsey,  Sau.  &  Sc.  628;  Cheva- 
lier V.  Fox,  1  Brad.  &  B.  277;  Smith  v.  Sandford,  3  Ir.  Jur.  253;  Murfee  v. 
Leper,  1  Overt.  1;  Davis  v.  You,  43  Ala.  691;  Newton  v.  Cocke,  10  Ark.  169; 
Mur-phy  v.  Darlington,  1  Code  Rep.  85 ;  but  see  Goodrich  v.  Pendleton,  5  Johns. 
Ch.  520 ;  Crawell  v.  Littlefield,  2  Rich.  17) ;  or  a  non-resident  guardian  of  an 
infant  plaintiff,  although  some  of  the  coplaintifis  are  residents  {Ten  Broeck  v. 
Reynolds,  13  How.  Pr.  462;  see  Landen  v.  Parr,  16  L.  J.  {Ch.)  269;  Kerry. 
QiUespie,  7  Bear.  269). 

A  foreign  corporation  must  give  bond  for  costs,  although  many  of  its  mem- 
bers are  residents  {Limerick  R.  R.  v.  Eraser,  4  Bing.  394  ;  Ross  v.  Hawey,  32 
Ga.  388 ;  see  Mechanics  Bank  v.  Goodwin,  2  Green  439  ;  Washington  R.  R.  v. 
Alexandria  R.  R.,  19  Gratt.  592;  Bank  v.  Jessup,  19  Wend.  10;  Republic  v. 
Erlanger,  L.  R.  {3  Ch.  Div.)  62). 

Non-resident  plaintiffs  may  sue  in  forma  pauperis  {Lisenbee  Co.  v.  Holt,  1 
Sneed  42;  Porter  v.  Jones,  68  N.  C.  320;  Contra,  Kelty  v.  Valle,  66  Mo.  601). 
In  an  action  by  a  husband  and  wife,  the  husband,  if  resident  abroad,  must 
give  security  {Hanmer  v.  Mangles,  12  M.  &  W.  313  ;  Habgood  v.  Paul,  8  Ir.  C. 
L.  App.  xxxiii.;  Smith  v.  Sanford,  3  Ir.  Jur.  253;  see  Col^s  Case,  28  Ala.  50; 
Smith  V.  Etches,  1  Hem.  &  M.  711;  Adams  v.  Waters,  50  Ind.  325;  Haney  v. 
Lundie,  58  Ala.  100;  Ring  v.  Nettles,  3  Ir.  Eq.  53). 

Query,  as  to  the  liability  of  the  attorney  of  record  for  costs,  where  one  plain- 
tiff was  a  non-resident  and  the  other  a  resident,  and  the  latter  died  or  went 
abroad  after  the  suit  was  instituted  {Jackson  v.  Powell,  2  Johns.  Cos.  67;  Bur- 
gees y.  Gregory,  1  Edw.  Ch.  449;  Seark  v,  Mann,  1  Miles  321;  Hodson  v.  Mo- 


190  CASES  IN  CHANCERY.  [33  Eq. 

Pinnell  v.  Boyd. 

Queen,  7  Ir.  C.  L.  288 ;  Green  v.  Charnock,  1  Ves.  S96 ;  Gilbert  v.  Gilbert,  S 
Paige  605  ;  Habgood  v.  Pavl,  8  Ir.  C.  L.  App.  xxxiii. ;  Rossell  v.  Inslee,  1  Hal. 
475 ;  Newman  v.  Landrine,  1  McCart.  291 ;  Vance  v.  Bird,  4  Munf.  S64;  Lea- 
zar  V.  Cola,  43  iV.  H.  82  ;  Haney  v.  Marshall,  9  Md.  194;  Parsons  v.  Williains, 
9  Conn.  236;  Sharp  v.  Buffington,  2  Watts  &Serg.  454;  Philpot  v.  McArthur,  10 
2Ie.  127 ;  Weeks  v.  Cole,  U  Fes.  518;  Anon.  Dick.  775;  People  v.  Oneida  Co., 
18  Wend.  652;  Long  v.  Hall,  S  Sandf.  729;  Button  v.  Hannibal  R.  R.,  51  Mo. 
15S). 

Citizens  of  one  state,  authorizing  a  suit  to  be  brought  in  another,  are  person- 
ally liable  for  the  costs  adjudged  against  them  there,  although  they  may  never 
have  been  in  the  other  state,  and  such  judgment  may  be  enforced  at  their 
domicil,  Waltm  v.  Sugg,  Phil.  {N.  C.)  98.— Rep. 


Charles  Pinnell 

V. 

Adonijah  S.  Boyd. 

1.  A  purchaser  of  the  mere  equity  of  redemption,  in  premises  covered  by  a 
usurious  mortgage,  who  purchases  subject  to  the  lien  of  the  mortgage,  cannot 
set  up  usury  as  a  defence. 

2.  A  material  and  controlling  fact,  which  is  clearly  and  fully  averred  in  the 
bill  and  not  denied  or  alluded  to  in  the  answer,  must  be  taken  as  confessed. 


On  final  hearing  on  bill,  answer  and  proofs. 
Mr.  John  C.  Besson,  for  complainant. 
Mr.  8.  B.  Itansom,  for  defendant. 

The  Vice-Chancellor. 

This  is  a  foreclosure  suit.  The  defence  is  usury.  It  is  not 
made  by  the  mortgagor,  but  by  a  purchaser  of  the  mortgaged 
premises,  who  acquired  title  under  the  foreclosure  of  a  mortgage 
executed  subsequent  to  that  of  the  complainant.  The  point  in 
dispute  is  whether,  under  the  averments  of  the  bill,  and  the  ad- 
missions made  by  the  defendant  in  his  answer,  he  is  not  pre- 


6  Stew.]  OCTOBER  TERM,  1880.  191 

Pinnell  v.  Boyd. 

eluded  from  setting  up  usury.  The  bill  charges  that  the  mort- 
gaged premises  were  sold  to  the  defendant,  at  sheriff's  sale, 
"  subject  to  the  lien  of  the  complainant's  mortgage."  Tlie  answer 
admits  this  charge.  It  says  that  the  mortgaged  premises  were 
sold,  as  in  the  complainant's  bill  set  out,  under  proceedings  insti- 
tuted upon  a  mortgage  given  subsequent  to  that  of  the  complain- 
ant, and  that  the  defendant  became  the  purchaser  at  such  sale, 
as  in  the  complainanfs  bill  stated. 

Chancellor  Green  said,  in  Dolman  v.  Cook,  1  MoCart.  63, 
"The  purchaser  of  the  mere  equity  of  redemption,  in  premises 
covered  by  a  usurious  mortgage,  who  purchased  subject  to  the 
lien  of  the  mortgage,  cannot  set  up  usury  as  a  defence."  He 
had  previously  used  precisely  the  same  language  in  pronouncing 
the  judgment  of  the  court  of  errors  and  appeals,  in  Brolashy  v. 
Millet',  1  Stock.  814"  This  is  now  the  settled  doctrine  of  this 
court.  Conover  r.  Hohart,  9  C.  E.  Gh'.  120 ;  Lee  v.  Stiger,  3 
Stew.  Eq.  610. 

Even  if  it  were  possible  to  so  read  the  answer  in  this  case  as 
to  be  able  to  say  that  it  did  not  admit  the  material  fact  charged 
in  the  bill,  still  we  would  be  bound  to  regard  the  silence  of  the 
answer  upon  this  point  as  an  admission  of  the  fact.  A  material 
and  controlling  fact,  which  is  clearly  and  fully  averred  in  the 
bill  and  not  denied  or  alluded  to  in  the  answer,  must  be  taken  as 
confessed.     Sanborn  v.  Adair,  2  Steio.  Eq.  338. 

It  is  insisted,  however,  that  the  averments  of  the  bill  in  this 
case  are  not  sufficiently  explicit  to  preclude  the  defence  of  usury. 
It  is  argued  that  its  averments  upon  the  point  under  considera- 
tion, in  order  to  be  sufficiently  explicit  to  demand  an  express 
denial  from  the  defendant,  to  enable  him  to  avail  himself  of  the 
defence  of  usury,  should  have  alleged  that  he  took  title  to  the 
mortgaged  premises  subject  to  the  particular  sum  mentioned  in 
the  mortgage,  or  some  other  expression,  stating  with  equal  per- 
spicuity, that  he  took  subject  to  the  sum  secured  by  the  mortgage 
on  its  face ;  for,  it  is  said,  that  an  averment  simply  alleging  that 
he  took  subject  to  the  lien  of  the  mortgage,  is  merely  saying,  in 
case  the  mortgage  is  usurious,  that  he  took  subject  to  such  sum 
as  may  be  recovered  upon  it  according  to  law.     In  other  words, 


192  CASES  IN  CHANCERY.  [33  Eq. 

Delaware,  Lackawanna  and  "Western  R.  R.  Co,  v.  Oxford  Iron  Co. 

that  a  usurious  mortgage  constitutes  a  lien  only  for  the  sum 
which  is  legally  recoverable  upon  it. 

But  an  examination  of  the  authorities  will  show  that  the 
draughtsman  of  the  bill  has  followed,  with  great  exactness,  the 
rule  as  laid  down  by  all  the  judges.  His  averments  are  as  ex- 
plicit and  definite  as  the  formula  of  the  rule  itself.  Besides,  at 
the  time  the  defendant  took  title,  so  far  as  the  pleadings  or  proofs 
show,  the  validity  of  the  complainant's  mortgage  was  undisputed ; 
no  usury,  up  to  that  time,  had  been  charged  against  it,  and  if  it 
be  true  that  the  defendant,  in  this  condition  of  affairs,  agreed  to 
take  the  mortgaged  premises  subject  to  the  lien  of  this  mortgage, 
the  conclusion  is  unavoidable  that  all  parties  understood  that  the 
burden  he  agreed  they  should  bear  was  the  sum  which  the  papers, 
upon  their  face,  showed  to  be  due  upon  them.  And  he  obtained 
title  to  them  for  that  much  less  than  their  fair  value.  If  this  be  the 
fact,  his  defence  is  founded  on  a  violation  of  good  faith,  and  can- 
not succeed  in  a  court  of  equity.  Viewed  in  its  most  favorable 
light,  his  defence  is  an  attempt  to  speculate  upon  a  violation  of 
law  which  has  done  him  no  harm. 

The  defendant  is  precluded,  by  the  admissions  of  his  answer, 
from  setting  up  usury.  The  complainant  is  entitled  to  a  decree 
without  deduction  for  usury. 


The  Delaware,  Lackawanna  and  Western  Railroad 

Company 

V. 

The  Oxford  Iron  Company. 

The  sixty-third  section  of  the  corporation  act  is  in  these  words  :  "  In  case 
of  the  insolvency  of  any  corporation,  the  laborers  in  the  employ  thereof  shall 
have  a  lien  upon  the  assets  thereof  for  the  amount  of  wages  due  to  them  re- 
spectively, which  shall  be  paid  prior  to  any  other  debt  or  debts  of  said  com- 
pany ;  and  the  word  '  laborers '  shall  be  construed  to  include  all  persons  doing 


6  Stew.]  OCTOBER  TERM,  1880.  193 

Delaware,  Lackawanna  and  Western  E.  K.  Co.  v.  Oxford  Iron  Co. 

labor  or  service  of  whatever  character,  for  or  as  workmen  or  employees,  in  the 
regular  employ  of  such  corporation." — Held — 

(1)  That  the  lien  so  given  comes  into  existence  as  of  the  date  which  the 
court  adjudges  to  be  the  time  when  the  insolvency  occurred  which  gives  it 
jurisdiction. 

(2)  That  persons  holding  claims  for  wages,  who  are  not  in  the  employ  of  a 
corporation  at  the  time  when  it  becomes  insolvent,  are  not  within  the  policy 
ot  the  act,  and  therefore  have  no  lien  upon  the  assets  thereof. 

(3)  That  the  presentation  of  a  claim,  embracing  other  items  than  charges 
for  wages,  does  not  work  a  forfeiture  of  the  right  of  lien  for  the  wages,  given 
by  the  statute. 

(4)  That  the  laborers  in  the  employ  of  a  corporation  at  the  time  of  its 
insolvency  have  a  lien  upon  the  assets  thereof  for  the  whole  amount  of 
wages  due  to  them  respectively,  no  matter  how  long  before  the  date  of  in- 
solvency the  wages  may  have  accrued. 

(5)  That  the  acceptance  of  a  promissory  note,  without  security,  does  not 
operate  as  a  waiver  of  the  lien  given  by  the  statute,  unless  an  intention  to  re- 
linquish such  right  is  unmistakably  manifested. 

(6)  That  the  lien  given  for  wages  does  not  include  interest  which  has  ac- 
crued thereon  before  the  lien  attaches. 

(7)  That  the  proving  of  a  claim  for  a  sum  in  excess  of  the  amount  really 
due  does  not  work  a  forfeiture  of  the  right  of  lien. 


On  exceptions  by  the  receiver  to  claims  for  wages  presented 
against  the  Oxford  Iron  Company. 

Mr.  Flavel  McGee,  for  receiver. 

Mr.  Henry  S.  Harris,  for  claimants. 

The  Vice-Chancelloe. 

To  a  large  number  of  the  claims  for  wages  exhibited  against 
the  Oxford  Iron  Company,  and  in  behalf  of  which  liens  are 

Note. — Ordinarily,  a  servant  is  not  entitled  to  a  lien  or  preference  in  pay- 
ment for  his  services  {Hoover  v.  Epler,  52  Pa.  St.  522;  Lewis  v.  Patt&rson,  20 
La.  Ann.  294 ) ;  nor  the  ofiScers  of  a  corporation  {Qroton  Ins.  Co.  Cme,  3  Barb. 
Ch.  64£) ;  nor  tort-feasors  {Dwinel  v.  Fiske,  9  Me.  21;  Madden  v.  Kempster,  1 
Camp.  12;  Lempriere  v.  Pauley,  2  T.  B.  4^5;  Hotchkiss  v.  Hunt,  49  Me.  213; 
see  Hamilton  v.  Buck,  36  Me.  536;  Horsey  v.  Langwartky,  3  Greene  {la.}  341) ; 

13 


194  CASES  IN  CHANCERY.  [33  Eq. 

Delaware,  Lackawanna  and  Western  E.  R.  Co.  v.  Oxford  Iron  Co. 

claimed  under  the  sixty -third  section  of  the  corporation  act,  the 
receiver  excepts,  denying  that  they  are  entitled  to  the  preference 
given  by  that  section.  The  questions  raised  by  these  exceptions 
have  been  informally  brought  before  the  court  by  agreement  of 
counsel,  and  fully  discussed.  I  shall  dispose  of  them  in  the  order 
in  which  they  were  discussed.  The  first  relates  to  the  time  when 
it  uyist  be  adjudged  the  right  of  lien  accrues — whether  that  time 
shall  be  held  to  be  fi!sed  when  the  fact  of  insolvency  actually 
occurs,  no  matter  how  long  that  may  be  before  legal  proceedings 
are  instituted,  or  not  until  the  fact  of  insolvency  is  judicially  as- 
certained.    The  section  is  in  these  words : 

"  In  case  of  tlie  insolvency  of  any  corporation,  the  laborers  in  the  employ 
thereof  shall  have  a  lien  upon  the  assets  thereof,  for  the  amount  of  wages  due 
to  them  respectively,  which  shall  be  paid  prior  to  any  other  debt  or  debts  of 
said  company;  and  the  word  'laborers'  shall  be  construed  to  include  all  per- 
sons doing  labor  or  service  of  whatever  character,  for  or  as  workmen  or  em- 
ployees in  the  regular  employ  of  such  corporation,"    Itev.  188. 

That  jmrt  of  the  section  which  creates  a  lien  is  practically  a 
transcript  of  the  forty-secoud  section  of  the  act  authorizing  the 
establishment  of  manufacturing  corporations.  Nix.  Dig.  {4ih  ed,) 
539.  The  proper  construction  of  the  section  last  mentioned,  so 
far  as  it  affects  the  question  under  consideration,  was  settled  iu 
Bedford  v.  Newark  Machine  Co.,  1  C.  E.  Gr.  117.  The  purpose 
of  both  being  the  same,  and  their  language  being  identical,  a 

nor  a  creditor  on  his  debtor's  chattels  in  his  possessien  {Allen  v.  Megguire,  15 
Mass.  490 ;  Brewer  v.  Pitkin,  11  Pick.  298;  Owen  v.  Dixon,  17  Conn.  49i , 
Bailey  v.  Ross,  20  N.  H.  S02 ;  see  St.  Louis  v.  Regenfuss,  28  Wis.  144). 

Within  the  meaning  of  statutes  giving — {1)  servants,  [2  )laborers,  (S)  employees, 
(4)  mechanics,  (5)  artificers  and  [6)  operatives— piefereuces  for  wages  for  work  done, 
the  following  have  been  deemed  (1)  Servants  :  An  overseer  and  book-keeper 
{Hovey  v.  Ten  Broeck,  3  Roberts.  S16) ;  a  superintendent  {Wickham  v.  Hardy,  S 
Jur.  {N.  S.)  871 ;  Cumberland  R.  R.  v.  Slack,  45  Md.  161) ;  an  assistant  super- 
intendent ( Vincent  v.  Bamford,  1  Jon.  &  Spen.  506  ;  see  Bryan  v.  State,  44  On. 
S28) ;  a  mining  boss  [Del.  Canal  Co.  v.  Carroll,  SO  Pa.  St.  37 4) ;  a  civil  engineer 
{Williamson  v.  Wadsworth,  49  Barb.  294;  see  Callahan  v.  B.  &  M.  R.  R.,  2S 
Iowa  562 ;  Pa.  R.  R.  v.  Letiffer,  84  Pa.  St.  168) ;  a  clerk  and  foreman  {Ex 
parte  Humphreys,  3  Deac.  &  Chit.  114  ;  Salina  v.  Seitz,  16  Kan.  143;  Abbott  v. 
Steam  Packet  Co.,  4  Md.  Ch.  310) ;  a  traveler  engaged  at  an  annual  salary  {Ex 
parte  Neale,  1  Mont.&  Mae.  194;  see  Reg.  v.  Tite,  Leigh  &  Cave  29 ;  Reg.  v. 


6  Stew.]  OCTOBER  TERM,  1880.  195 

Delaware,  Lackawanna  and  Western  R.  R.  Co.  v.  Oxford  Iron  Co. 

judicial  construction  of  one  determines  also  the  meaning  of  the 
other.  The  case  just  cited,  I  understand,  settles  two  propositions : 
first,  that  a  person  not  in  the  employ  of  the  corporation  at  the  time 
it  becomes  insolvent,  is  not  entitled  to  the  benefit  of  the  statute ; 
and  second,  that  the  insolvency  meant  in  the  act  is  that  ascer- 
tained by  the  court  as  the  ground  of  its  jurisdiction.  Until  a 
corporation  becomes  insolvent,  and  this  fact  is  laid  before  the 
court  in  the  regular  method  of  procedure,  it  has  no  authority  to 
interfere  with  the  corporation.  Until  insolvency  is  charged 
against  it,  in  legal  form,  the  court  is  bound  to  presume  it  was 
solvent.  Upon  this  point.  Chancellor  Green,  in  the  case  just 
cited,  said  that  the  statute  looks  to  the  insolvency  which  leads  to 
the  proceeding  resulting  in  a  judicial  determination  of  insolvency. 
He  further  said :  "  The  court  cannot,  upon  an  inquiry  of  this 
nature  [and  the  inquiry  then  before  the  court  was  as  to  who  was 
entitled  to  this  lien],  undertake  to  investigate  the  financial  ability 
of  the  corporation  at  previous  periods,  founded  upon  a  mere  fail- 
ure to  meet  its  engagements,  or  upon  the  actual  state  of  its 
finances,  after  its  business  has  been  suspended."  The  insolvency 
whicii  gives  rise  to  this  lieu  is  that  which  is  judicially  ascer- 
tained and  becomes  the  ground  of  the  court's  jurisdiction.  The 
court  has  nothing  to  do  with  the  previous  condition  of  the  cor- 
poration. The  lien  given  by  the  statute  comes  into  existence 
as  of  the  date  which  the  court  adjudges  to  be  the  time  when  the 

Negus,  L.  B.  (i  C.  C.)  34) ;  the  mate  of  a  vessel  {Ex  parte  Homborg,  6  Jur. 
S9S) ;  the  housekeeper  of  a  hotel  {Lawler  v.  Linden,  Ir.  L.  It.  [10  Com.  Law) 
1S8) ;  a  bar-keeper  {Boniface  v.  Scott,  S  Serg.  &  Rawle  S51) ;  a  journeyman 
{Hart  V.  Aldridge,  Ccrwp.  64,  Lofft  493;  see  Landry  v.  Llanchard,  20  La. 
Ann.  173;  Lx  parte  Gordon,  1  Jur.  {N.  S.)  683;  Jobsen  v.  JBoden,  3  Fa.  St. 
463  ;  Phillips  on  Mech.  Liens  §  50) ;  a  designer  [Ex  parte  Ormerod,  1  D.  &  L, 
^25) ;  an  oven-placer  in  a  pottery  ( Willett  v.  Boote,  6  H.  &  N.  26) ;  a  clerk 
whose  wages  are  not  all  due  {Thomas  v.  Williams,  1  A.  &  E.  685). 

(2)  Laborers:  A  railroad  workman  with  his  team  {Warner  v.  Hudson 
River  R.  B.,  6  How.  Pr.  454;  but  as  to  the  team,  see  Atcherson  v.  Troy  B. 
R.,  6  Abb.  Pr.  {N.  S.)  329  ;  Barnard  v.  McKenzie,  4  Col.  251 ;  Hill  v.  Newman, 
SS  Pa.  St.  151;  Heebner  v.  Chave,  5  Pa.  St.  115;  Wenlworth's  Appeal,  82  Pa. 
St.  469;  Hope  Mining  Co.,  1  Savn/.  710;  Coburn  v.  Ker swell,  35  Me.  126  ;  Mc- 
OriUis  V.  Wilson,  34  Me.  286  ;  Batch  v.  N.  Y.  &  0.  B.  R.,46  N.  Y.  521 ;  Brusie 
V.  Griffith,  34  Cat.  302;  Branin  v.  Conn.  B.  R.,  31  Vt.  214) ;  a  laborer,  although 


196  CASES  IN  CHANCERY.  [33  Eq. 


Delaware,  Lackawanna  and  Western  R.  R.  Co.  r.  Oxford  Iron  Co. 


insolvency  accrued  which  gives  it  jurisdiction.  That  date  in 
this  case,  fixed  by  the  decree  of  the  court,  is  September  6th,  1878, 
and  that  must  be  taken  as  the  time  when  the  right  of  lien  arose. 
The  second  question  propounded  is,  Does  this  lien  arise  in  favor 
of  an  assignee  of  a  claim  for  wages,  who  acquired  his  right  prior 
to  the  date  of  insolvency  fixed  by  the  decree?  The  wages,  to  be 
within  the  protection  of  the  statute,  must  be  due  to  a  person  in 
the  employ  of  the  corporation  at  the  time  when  it  becomes  in- 
solvent. If,  prior  to  that  time,  they  are  assigned,  so  that  wlien 
insolvency  occurs  they  are  not  due  to  an  employee,  no  lien 
arises.  Such,  I  think,  is  the  plain  direction  of  the  statute.  Its 
words  are,  "  In  case  of  the  insolvency  of  any  corporation,  the 
laborers  in  the  employ  thereof  siiall  have  a  lien  upon  the 
assets  thereof,  &c."  Only  those  in  the  employ  of  the  corporation 
at  the  time  of  its  insolvency  are  within  either  the  words  or  the 
policy  of  the  statute.  The  purpose  of  the  statute  is  obvious.  It 
is  sometimes  a  matter  of  the  utmost  importance  to  the  public  that 
the  business  of  an  insoh^ent  corporation  should  be  kept  in  opera- 
tion, and  it  is  almost  always  true  that  the  property  of  such  bodies 
cannot  be  preserved  unless  they  are  kept  up  as  going  concerns. 
The  statute  was  designed  to  accomplish  both  of  these  purposes. 
And  to  this  end  it  was  clearly  nrcessary  that  the  employees  of  a 
corporation  in  an  insolvent  condition,  whose  skill  and  labor  are 
indispensable  to  the  continuance  of  its  operations,  siiould  be  made 

also  a  mechanic  {Adams  v.  Goodrich,  55  Ga.  233 ;  see  Myers  v.  Buchanan,  46 
Miss.  397) ;  hoisters  of  materials  {Tizzard  v.  Hughes,  3  Phila.  S61)  ;  one  eu- 
ployed  bv  the  owner  to  cook  for  his  workmen  ( Young  v.  French,  35  Wv'.  Ill; 
contra,  Sullivan's  Appeal,  77  Pa.  St.  107  ;  McCormick  v.  Los  Angeles  Co.,  40  Col. 
1S5) ;  a  pilot,  who  was  also  a  contractor  (Hanson  v.  HUes,  34  Iowa  350 ;  see 
Cook  V.  Parham,  24  Ala.  21;  Dudman  v.  Dublin  Board,  Ir.  L.  R.  (7  Com.  Law) 
518)  ;  a  miner  wlio  mines  coal  for  a  certain  price  per  ton  (Pcnna.  Coal  Co.  v. 
Costdlo,  S3  Pa.  St.  241 ;  Reed^s  Appeal,  18  Pa.  St.  235) ;  all  who  work  with 
their  own  hands  {Sellers' s  Appeal,  46  Pa.  St.  57 ;  Ingrain  v.  Barnes,  7  EI.& 
Bl.  115;  Jacobs  v.  Knapp,  50  N.  H.  71;  Floyd  v.  Weaver,  16  Jur.  289;  Coch- 
ran V.  Svoan,  53  Ga.  39;  Bobbins  v.  Rice,  18  N.  H.  507) ;  the  digger  of  a  well 
at  a  certain  price  per  foot  (Lowther  v.  Radnor,  8  East  US') ;  house  painters 
(Martine  v.  Nelson,  51  III.  422)  •  a  reporter  and  city  editor  of  a  newspaper 
(Herries  v.  Noi-veJl,  17  Am.  Law  Reg.  (N.  S.)  97  and  note) ;  a  drayman  (  Waison 
V.  Watson  Co.,  3  Stew.  Eq.  588).  ■     I 


6  Stew.]  OCTOBER  TERM,  1880.  197 

Delaware,  Lackawanna  and  Western  E.  E.  Co.  v.  Oxford  Iron  Co. 

secure  for  their  wages.  To  enable  an  insolvent  corporation  to 
retain  its  employees  is  the  primary  object  of  the  statute.  Persons 
holding  claims  for  wages,  who  are  not  in  the  employ  of  a  corpora- 
tion at  the  time  when  it  becomes  insolvent,  are  not,  therefore, 
within  its  policy  nor  entitled  to  its  protection. 

It  is  undoubtedly  true  that  the  assignment  of  the  debt  carries 
with  it  any  security  which  the  assignor  holds.  But  when  these 
assignments  were  made  the  assignors  had  no  security  or  lien. 
The  right  of  lien  arose  subsequently,  and  though  the  assignors  may 
still  have  been  in  the  employ  of  the  corporation  when  it  became 
insolvent,  the  wages  previously  assigned  were  not  due  to  them, 
but  to  persons  not  entitled  to  the  character  of  employees.  The 
statute  creates  a  lieu  in  favor  of  no  person  except  an  employee 
who  is  in  the  employ  of  a  corporation  at  the  time  when  it  be- 
comes insolvent,  and  in  favor  of  no  debt  except  for  wages  due  an 
employee  who  is  in  the  employ  of  a  corporation  at  the  time  when 
it  becomes  insolvent. 

An  assignment  made  after  the  lien  has  attached  passes,  of 
course,  both  wages  and  lien,  and  in  such  case  the  assignee  will 
hold  the  debt  with  its  security. 

The  third  question  submitted  asks  whether,  if  a  claim  is  pre- 
sented, embracing  other  items  than  charges  for  wages,  a  lien  for 
any  part  of  it  will  attach.  The  statute  gives  no  specific  direction 
as  to  the  method  in  which  claims  under  this  section  shall  be 


Employees  or  laborers  of  a  sub-contractor  may  be  included.  Branin 
Conn.  R.  R,  31  Vt.  SI4;  Mundt  v.  Sheboygan  R.  R.,  31  Wis.  4-51 ;  P'tn-s  v.  St 
Louis  R.  R.,  24  Mo.  586;  Kent  v.  New  York  Central  R.  R.,  IS  N.  Y.  628, 
Grannahan  v.  St.  Louis  R.  R.,  30  Mo.  546;  Cosgrove  v.  Teho  R.  R.,  54  Mo.  495; 
Hart  V.  Boston  R.  R.,  121  Mass.  510;  Conant  v.  Van  Shaick,  24  Barb.  87 ; 
Winslow  V.  Urquhart,  39  Wis.  260  ;  Redmond  v.  Galena  R.  R.,  Id.  4^6. 

But  see  Arbuckle  v.  Illinois  R.  R.,  81  III.  429  ;  Cairo  R.  R.  v.  Watson,  85  III. 
531;  Gallaghar  v.  Ashby,  26  Barb.  143;  Millered  v.  Lake  Ontario  R.  R.,  9 
How.  Pr.  238;  Lake  Erie  R.  R.  v.  Eckler,  IS  Ind.  67 ;  Indianapolis  R.  R.  v. 
O'Reily,  38  Ind.  I40 ;  3Iarks  v.  Indianapolis  R.  R.,  Id.  440;  Utter  v.  Crane,  37 
Iowa  631 ;  Doe  v.  Monson,  33  Me.  430  ;  Jacobs  v.  Kaapp,  50  N.  H.  71 ;  Guthrie 
V.  Horner,  12  Pa.  St.  236. 

(3)  Employees  :  Counsel  who  have  rendered  professional  services  {Gurney 
V.Atlantic  and  G.  W.  R.  R.,  58  N.  Y.  358) ;  police  officers  {Mallory  v.  United 
Slates,  3  Ct.  of  CI.  257  ;  see  Kimball  v.  Bo^t^n,  1  Allen  417^ ;  a  laborer  on  gov- 
ernment gromds  {Sionf'n  C«.-t,  3  Ct.  of  CI.  260)  ;  not  one  who  merely  shovela 


198  CASES  IN  CHANCERY.  [33  Eq. 

Delaware,  Lackawanna  and  Western  K.  K.  Co.  v.  Oxford  Iron  Co. 

})roved.  Unsecured  debts  are  to  be  proved  in  sucli  manner  as 
this  court  shall  direct.  Bev.  18S  §  6S.  Generally,  the  books 
of  a  corporation  contain  the  only  written  evidence  of  the  amount 
of  wages  due  to  its  employees.  When  this  is  tlie  case,  no  diffi- 
culty can  arise  in  ascertaining  the  suras  for  which  liens  may  be 
claimed.  To  prevent  confusion  in  case  an  employee  happens  to 
have  two  claims,  one  entitled  to  preference  and  the  other  not, 
they  should  be  proved  separately,  but  if  he  fails  or  refuses  to  do 
so,  I  know  of  no  principle  of  law  which  would  justify  the  court 
in  declaring  that  he  had  thereby  forfeited  his  right  under  the 
statute.  If,  in  consequence  of  the  intermingling  of  charges  for 
wages  with  charges  not  lienable,  serious  difficulty  should  arise  in 
ascertainiuo;  how  much  is  due  for  wao-es,  I  think  all  fair  doubts 
should  be  resolved  against  the  claimant's  right  to  preference,  and 
he  should  only  be  allowed  a  lieu  for  such  sum  as  clearly  appears 
to  be  due  for  wages. 

The  fourth  question  discussed  is,  Does  the  statute  give  a  lien  for 
wages  earned  prior  to  April  7th,  1875  ?  That  is  the  date  of  the 
incorporation  of  the  provision  under  consideration  into  the  general 
corporation  act.  Prior  to  that  date  it  applied  to  such  corpora- 
tions only  as  were  organized  under  the  act  authorizing  the  estab- 
lishment of  manufacturing  corporations.  The  Oxford  Iron  Com- 
pany was  created  by  special  charter.     P.  L.  of  1859  p.  377. 

and  loads  dirt  on  a  gravel  train  {Deppe  v.  Chicago  R.  B.,  36  Iowa  52) ;  a  sec- 
retary (  Wells  V.  South  Minn.  B.  B.,  1  Fed.  Bep.  270). 

(4)  Mechanics:  A  vendor  of  machinery  is  not  a  machinist  {Kirhpalriek  v. 
Bank  of  Augusta,  SO  Ga.  ^65;  Schofield  v.  Stout,  59  Ga.  537) ;  a  corporation 
may  be  {Loudon  v.  Coleinan,  59  Ga.  653 ;  Phillips  on  Mech.  Lien  I  53 ;  Yelbw 
Biver  Co.  v.  Arnold,  4^  Wis.  214  ;  see  Kentuclcy  Lead  Co.  v.  New  Albany  Water 
Works,  62  Ind.  63) ;  not  one  who  works  casually  at  a  trade  ( Grantham's  Case, 
1  Winst.  73). 

(5)  Artificers:  A  weaver  of  gloves  at  an  agreed  price  per  dozen  pairs 
{Chawner  v.  Cammings,  S  Q.  B.  311;  Moorhouse  \.Lee,4  F.  &  F.  354);  a 
"  buity  collier"  {Bowers  v.  Lovekin,  6  El.  & Bl.  584;  Sleeman  v.  Barrett,  2  JI.& 
C.  934;  Pillar  v.  Llynor  Co.,  L.  B.  {4  C.  P.)  753) ;  a  vessel  iron-plater  {Law- 
rence V.  Todd,  14  C.  B.  {N.  S.)  554) ;  one  working  manually  and  also  superin- 
tending others,  for  weekly  wages  and  a  commission  (  Whiteley  v.  Armitage,  13 
W.  B.  144) ;  an  overseer  in  a  printing-office  {Bishop  v.  Letts,  1  F.  &  F.  401). 


6  Stew.]  OCTOBER  TERM,  1880.  199 

Delaware,  Lackawanna  and  Western  R.  E.  Co.  v.  Oxford  Iron  Co. 

Statutes  are  to  be  construed  to  operate  prospectively,  unless  a 
retrospective  effect  be  clearly  intended.  As  a  general  rule,  a 
statute  takes  effect  only  from  its  date,  and  therefore,  although  its 
words  may  be  broad  enough,  in  their  literal  signification,  to  com- 
prehend existing  cases,  it  is  to  be  construed  as  extending  only  to 
cases  that  shall  arise  after  its  date.  Even  remedial  statutes  are 
to  be  deemed  prospective,  and  are  not  to  be  applied  to  existing 
proceedings  unless  a  contrary  intent  be  clearly  expressed.  These 
are  familiar  rules  of  construction. 

There  is  nothing  on  the  face  of  this  statute,  and  certainly 
nothing  in  its  policy,  which  indicates  that  the  legislature  intended 
it  should  have  a  retrospective  effect.  Tlie  lien  given  by  it,  as 
against  this  corporation,  attaches  only  to  wages  earned  since 
April  7th,  1875. 

Some  of  the  employees  of  the  Oxford  Iron  Company  have 
permitted  their  wages  to  remain  uncollected  for  long  periods, 
extending  in  some  instances  over  three  or  four  years.  Whether 
they  did  so  at  the  request  of  the  officers  of  the  corporation,  or 
because  they  believed  them  to  be  safe  and  desired  them  to  ac- 
cumulate, does  not  appear.  The  question  raised  on  this  branch 
of  the  case  is,  Are  such  parts  of  the  claim  as  embrace  wages 
earned  prior  to  the  pay-day  immediately  preceding  the  date 
when  the  corporation  became  insolvent,  entitled  to  the  preference 
given  by  the  statute?     It  is  insisted  that  the  statute  was  not 

(6)  Operatives:  An  apprentice  {Ex  parte  Steiner,  1  Pa.  L.  J.  Rep.  36S ; 
Bedford  y.  Newark  3Iachine  Co.,  1  C.  E.  Gr.  117 ;  see  The  Beaver,  3  Bob.  Ad. 
S9S;  Mason  v.  The  Blaireau,  2  Qranch  Z40  ;  Milligan  v.  Wedge,  12  A.  &  E. 
7S7 ;  New  Orleans  B.  B.  v.  Harrison,  48  Miss.  112) ;  or  son  of  a  workman  (In 
re  Hartman,  4  Bank.  Beg.  10 S ;  Atcherson  v.  Troy  B.  B.,  6  Abb.  Pr.  [N.  S.) 
SSS  ;  see  Batron  v.  Collins,  43  Ga.  580) ;  or  wife  ( Thayer  v.  Mann,  2  Cash. 
371;  see  Angulo  v.  Sunol,  U  Cal.  402). 

The  following  were  held  to  come  within  none  of  the  classes  named :  a  statute 
giving  redress  to  "  any  person"  injured  on  a  railroad,  does  not  include  a  laborer 
(Bohback  v.  Pac.  B.  B.,  43  Mo.  187) ;  a  statute  exempting  the  wages  of  railroad 
employees  from  garnishment  was  afterwards  extended  to  all  employees  who 
were  married. — Held,  that  railroad  employees  were  embraced  in  the  amendment 
(Burlander  v.  Milwaukee  B.  B.,  26  Wis.  76;  see  Johnson's  Estate,  S3  Pa.  St. 
511) ;  contractors  (Sharman  v.  Sanders,  13  C.  B.  166  ;  Ingram  v.  Bariies,  7  El. 
<t-  Bl.  115  ;  Biley  v.  Warden,  2  Exch.  59  ;  Lehigh  Coal  Ch.  v.  Central  B.  B.  Co., 


200  CASES  IN  CHANCERY.  [33  Eq. 

Delaware,  Lackawanna  and  Western  R.  R.  Co.  v.  Oxford  Iron  Co. 

intended  to  give  protection  to  the  negligent  and  slothful,  nor  to 
enable  employees  to  use  a  trading  or  mannfacturing  corporation 
as  a  savings  bank.  Its  pertinent  words  are  that  the  employees  in 
the  employ  of  any  corporation  at  the  time  when  it  becomes  in- 
solvent, shall  have  a  lien  "for  the  amount  of  wages  due  to  them 
respectively."  This  language  is  plain  and  easily  understood. 
The  inquiry  is  very  simple:  Is  the  sum  claimed  wages?  If  the 
wages  have  been  paid,  and  then  returned  as  a  deposit  or  loan, 
the  sum  due  is  not  wages — they  have  been  paid — but  a  loan. 
But  if  no  payment  has  been  made,  but  the  sum  due  still  repre- 
sents compensation  for  labor  or  service,  then  the  case  is  just  the 
one  described  by  the  statute,  and  is  clearly  within  its  words  as 
well  as  its  spirit.  There  are  no  restrictive  words  in  this  statute, 
either  as  to  time  or  amount.  The  statute  regulating  assignments 
for  the  benefit  of  creditors  limits  the  sum  for  which  preference 
may  be  claimed.  Rev.  38  §  8.  The  presence  of  this  limitation 
in  one  act,  and  not  in  the  other,  shows  very  clearly,  I  think,  that 
the  legislature  intended  to  prescribe  a  diiferent  rule  in  one  case 
from  that  which  was  prescribed  in  the  other.  This  purpose  must 
have  effect. 

The  sixth  question  is,  Does  the  acceptance  of  a  promissory 
note  operate  as  a  waiver  of  the  lien  ?  This  lien,  like  any  other 
right,  may  be  waived.  An  intention  to  extinguish  a  right  may, 
in  certain  cases,  be  as  unmistakably  manifested  by  acts  as  by 

2  Stew.  Eq.  252 ;  Ney  v.  Dubuque  R.  R.,  20  Iowa  34-7 ;  BoutweU  v.  Tovmsend, 
S7  Barb.  205  ;  Cummings  v.  New  York  R.  R.,  1  Lans.  68;  Chapman  v.  Black 
River  R.  R.,  A  Lans.  96;  Corbin  v.  Amer.  Mills,  27  Conn.  274;  Batch  v.  N.  Y. 
&  0.  R.  R.,  46  N.  Y.  521;  Aikin  v.  Wasson,  24  N.  Y.  482;  Breed  v.  Nagle,  46 
Ga.  112 ;  Witman  v  Walker,  9  W.  &  S.  18S ;  Footman  v.  Puscy,  45  Ga.  561; 
Robinson  v.  Webb,  11  Bush  474;  Chicago  R.  R.  v.  McCarthy,  20  111.  385) ;  a 
physician  ( Weymouth  v.  Sanborn,  43  N.  H.  171 ;  see  Huniir's  Case,  1  Winst. 
372) ;  a  foreign  superintendent  of  mines  {HiU  v.  Spencer,  61  N.  Y.  274;  Bean 
V.  DeWolf,  16  Hun  186) ;  a  time-keeper  of  laborers  {M.  K.  &  T.  R.  R.  v.  Baker, 
14  Kan.  563 ;  Snyder  v.  Gibbons,  3  Phila.  126) ;  or  paymaster  {Edgar  v.  Scdis- 
bury,  17  Mo.  271) ;  a  consulting  engineer  (Ericsson  v.  Brown,  38  Barb.  390) ;  a 
secretary  (Coffin  v.  Reynolds,  37  N.  Y.  64O ;  see  Richardson  v.  Abendroth,  43 
Barb.  162) ;  an  architect  (Bank  of  Pa.  v.  Gries,  35  Pa.  St.  428 ;  Ames  v.  Dyer, 

41  Me.  397 ;   Price  v.  Kirk,  90  Pa.  St. ;  Raeder  v.  Bensberg,  6  Mo.  App. 

445);  alitei;  where  he  also  superintends  the  building   {Mut.  Ben.  Ins.  Co.  v. 


6  Stew.]  OCTOBER  TERM,  1880.  201 

Delaware,  Lackawanna  and  Western  K.  R.  Co.  v.  Oxford  Iron  Co. 

words;  but  to  warrant  the  court  in  giving  acts  such  force,  they 
must  declare  the  actor's  purpose  with  such  clearness  and  certainty 
as  to  be,  in  effect,  a  declaration  of  his  intention  to  give  up  his 
riglits.  The  acceptance  of  a  promissory  note,  without  security, 
is  not  capable  of  being  so  understood ;  all  the  inferences  to  be 
drawn  from  such  an  act  run  very  strongly  in  the  opposite  direc- 
tion. The  rule  upon  this  subject,  I  think,  is  settled.  The 
acceptance  of  the  debtor's  own  promissory  note  for  a  debt,  which 
may  be  made  the  basis  of  a  lien  under  the  mechanics'  lieu  law, 
is  not  a  waiver  of  the  payee's  right  of  lien.  The  same  rule,  I 
think,  should  govern  here. 

The  seventh  question  may  be  stated  as  follows :  Does  this  lien 
include  interest  ?  The  question,  it  will  be  observed,  assumes  that 
interest  has  accrued.  What  the  fact  is  I  have  no  means  of 
ascertaining,  but  for  the  purpose  of  deciding  the  question,  I  shall 
assume  that  interest  has  accrued.  Interest  is  not  within  the 
literal  terms  used — wages  alone  are  mentioned.  The  employees 
are  to  have  a  lien  "  for  the  amount  of  wages  due  to  them  respec- 
tively." Ordinarily,  where  a  debt  bears  interest,  the  interest  is 
regarded  as  an  incident  of  the  debt,  constituting  part  of  it ;  and 
if  a  lien  is  given  for  the  debt,  it  covers  the  whole  debt,  including 
interest.  But  the  word  used  here  is  not  "  debt,"  but  "  wages" — 
viz.,  compensation  for  labor  or  services.  Another  part  of  the 
section,  however,  shows  that  wages  was  used  as  synonymous  with 

Bowand,  11  G.  E.  Gr.  389  ;  Knight  v.  Norris,  13  Minn.  473;  St.  Ciair  Coal  Co.  v. 
Martz,  75  Pa.  St.  384;  Stryker  v.  Cassidy,  76  N.  Y.  50;  see  Foushee  v.  Grigshy, 
12  Bush  75)  ;  the  superintendent  of  a  building,  who  is  also  the  contractor 
{Biakey  v.  Blakty,  27  Mo.  39;  see  Kansas  B.  B.  v.  lAitle,  19  Kan.  267) ;  the 
foreman  of  a  tailor  {Lauran  v.  Hotz,  1  Mart.  {N.  S.)  I4O) ;  a  teacher  in  an 
insolvent's  school  {Labato's  Case,  2  Mart.  {N.  S.)  652;  see  Dollahite's  Case,  1 
Winst.  74) ;  a  music  master  {Ex  -parte  Walter,  L.  B.  {15  Eg.)  412) ;  a  governess 
{Todd  V.  Kerrick,  8  Exch.  151);  workmen  in  an  iron  foundry,  as  servants, 
[Measan's  Case,  5  Binn.  167 ;  Ex  parte  Crawfoot,  1  Mont.  270) ;  an  undertaker 
{Jones  v.  Shawhan,  4  W.  <&  S.  257) ;  the  guard  of  a  stage-coach  [Ex  parte  Skin- 
ner, 3  Deac.  &  Chit.  332) ;  workmen  who  work  by  the  piece  {Ex  parte  Grellier, 
1  Mont.  264) ;  a  surveyor  of  wood  {Blackman's  Case,  6  Chicago  L.  N.  18) ; 
"croppers"  {Daniel  v.  Swearengen,  6  Bich.  {N.  S.)  471) ;  one  who  had  agreed 
to  build  a  wall  at  a  certain  price  and  within  a  certain  time  {Lancaster  v. 
Oreaves,  9  B.  &  C.  628 ;  McGinness  v.  Farrington,  43  Conn.  143) ;  an  overseer 


202  CASES  IN  CHANCERY.  [33  Eq. 

Delaware,  Lackawanna  and  Western  K.  K.  Co.  v.  Oxford  Iron  Ck). 

debt,  for  the  direction  is  that  wages  shall  be  paid  prior  to  other 
debt  or  debts.  The  important  considerations  on  this  branch  of 
the  case  are :  Wages  are  usually  paid  at  short  intervals.  Such  is 
almost  the  universal  custom.  It  grows  out  of  the  necessities  of 
the  employees.  They  generally  work  for  small  compensation,  and 
their  daily  labor  is  their  only  means  of  support.  They  are  sel- 
dom able  to  allow  their  wages  to  accumulate.  Protection  for 
accumulation  was,  obviously,  not  one  of  the  purposes  of  the  law. 
Such  cases  so  rarely  happen  that  it  cannot  be  supposed  that  the 
legislature  intended  to  make  provision  for  them.  The  legislature 
merely  intended  to  secure  to  employees  their  wages,  for  that  was 
all  the  protection  it  was  necessary  to  extend  to  them  to  accom- 
plish tile  end  in  view,  namely,  to  keep  an  insolvent  corporation 
in  operation  as  a  going  concern.  In  the  great  majority  of  cases, 
the  amount  of  Avages  that  an  employee  will  allow  to  fall  in  arrear 
will  be  very  small,  and  the  sum  due  for  interest  will  be  still 
smaller — so  trifling,  indeed,  that  it  would  have  no  influence  what- 
ever upon  his  judgment  in  deciding  whether  he  should  stay  or 
seek  other  employment.  Besides,  the  preference  given  is  in 
derogation  of  the  common  right  of  equality  among  creditors  of 
the  same  rank,  and  the  scope  of  the  statute  should  not,  therefore, 
be  extended  by  construction.  The  court  is  bound  to  give  what 
is  granted,  but  nothing  more.  The  lien  given  is  for  wages,  and 
I  think  the  court  is  bound  to  restrict  it  to  M'ages.     No  interest 


{Bust  V.  BUlingslea,  U  Ga.  SOS;  Whitaker  v.  Smith,  SI  N.  C.  SJfl ;  see  Caraker 
V.  Mathew!;,  25  Ga.  571)  ;  one  engaged  in  selling  and  delivering  wood  by  the 
cord  at  a  mill,  (  Wadsworth  v.  Duke,  50  Ga.  91;  see  Palmer  v.  Tucker,  Jf5  Me. 
S16) ;  a  plasterer  [Fox  v.  Mucker,  30  Ga.  525 ;  Parker  v.  Bell,  7  Gray  4^9) ;  a 
mover  of  buildings  {Stephens  v.  Holmes,  64  III.  836) ;  an  agent  of  an  insurance 
company,  in  another  state  {First  Nat.  Bank  v.  Jaggers,  31  Md.  SS)  ;  a  police- 
man {Johnson  v.  Mallet,  2  Win&t.  13 ;  see  Bultrick  v.  Lowell,  1  Allen  172 :  Kim- 
ball V.  Boston,  Id.  4^7). 

Servants  &c.,  who  voluntarily  leave,  forfeit  their  lien  for  wages  due  (Ex 
parte  Gee,  3  Deac.  563;  Ex  parte  Bennett,  3  Mont.  &  Ayr.  669;  Napier's  Case, 
2  Pug.  300,  3  Pug.  134;  Bedjwd  v.  Newark  Machine  Co.,  1  C.  E.  Gr.  117 ;  «ee 
Curtis' s  Case,  1  Winst.  ISO;  Sanders's  Case,  2  Mont.  &  Ayr.  684). 

Taking  a  note  for  the  wages  is  no  waiver  (  Weymouth  v.  Sanborn,  43  ^. 
H.  171;  Clement  v.  Newton,  78  III.  427 ;  Laviolete  v.  Bedding,  4  B.  3Ion.  SI; 
Globe  V.  Gale,  7  Black/.  218;  Meeks  v.  Sims,  84  III.  422 ;  McMurray  v.  Taylor, 


6  Stew.]  OCTOBER  TERM,  1880.  203 

Delaware,  LackaAvanna  and  "Western  E.  R.  Co.  v.  Oxford  Iron  Co. 

should  be  allowed  before  the  lien  attaches ;  after  that,  interest 
should  be  allowed. 

The  counsel  of  the  receiver  charges  that  some  of  the  claims 
have  been  proved  for  sums  in  excess  of  the  amounts  really  due. 
Such  claims,  he  insists,  are  fraudulent ;  and  for  that  reason  it  is 
the  duty  of  the  court  to  declare  the  right  of  lien,  in  respect  to 
them,  to  be  forfeited.  There  is  no  evideuce  of  fraud  before  the 
court.  But  suppose  there  was — the  statute  does  not  make  fraud 
a  cause  of  forfeiture.  It  contains  no  words  of  forfeiture  for  any 
cause.  Such  a  purpose  must  not  be  imputed  to  the  law-making 
power,  in  the  absence  of  clear  words,  or  an  implication  so  strong 
as  to  be  equivalent  to  express  words.  Reeve  v.  Elmendorf,  9  Vr. 
125,  has.  no  application  to  the  matter  in  hand.  There  is  no 
analogy,  in  any  point  of  view,  betweeen  the  two  cases.  Usually 
the  officers  of  a  corporation  are  much  better  informed  as  to  the 
amounts  dua  to  its  creditors  of  this  class  than  are  the  creditors 
themselves.  Their  books  frequently  contain  the  only  account 
existing  between  the  parties,  and  in  case  of  dispute  are  resorted 
to  by  both  parties  as  their  mutual  arbiter.  It  is  not  pretended 
in  this  case  that  tlie  least  difficulty  will  be  encountered  in  ascer- 
taining the  actual  amounts  due. 

In  my  judgment,  the  mere  fact  that  a  claim  for  wages  is  pre- 
sented for  a  sum  in  excess  of  the  amount  really  due,  does  not 
deprive  the  claimant  of  the  preference  given  to  him  by  the 
statute. 


20  Mo.  263;  Morrison  v.  Laura,  40  Mo.  260 ;  Blake  v.  Pitcher,  50  Md.  4SS  ; 
Prentiss  v.  Garland,  67  Me.  345 ;  Hutchinson  v.  Swartsweller,  4  Stew.  Eq.  205  ; 
White  V.  Dumpke,  45  Wis.  454;  see  Hut  chins  v.  Olcott,  4  Vt.  549 ;  Green  v. 
Fox,  7  Allen  85 ;  Ehlers  v.  Elden,  51  Miss.  495 ;  Schneidei-  v.  Kolchoff,  59  Ind. 
568  ;  Napier's  Case,  2  Pug.  300). 

A  laborer's  lien  is  not  assignable  {Cairo  &  V.  R.  R.  v.  Fackney,  78  III.  116 ; 
Wing  V.  Griffin,  1  E.  D.  Smith  162;  Ruggles  v.  Walker,  34  Vt.  468;  Rollin  v. 
G-oss,  45  N.  Y.  766;  Dana  v.  M.  &  0.  R.  R.,  27  Ark.  564;  Tewksbury  v.  Bran- 
son, 48  Wis.  581 ;  see  Krauser  v.  Ruckel,  17  Hun  4^3 ;  Rogers  v.  Omaha  Co.,  4 
Neb.  54;  Goff  v .  Papin,  34  Mo.  177 ;  Brown's  Case,  4  Ren.  142 ;  Nash  v.  Moshei; 
19  Wend.  431;  Sinton  v.  Roberts,  46  Ind.  476;  Famell  v.  Grier,  38  Iowa  S3  ; 
Bonnell  v.  Holt,  89  III.  71;  Kerr  v.  Moore,  54  Miss.  286;  Peters  v.  St.  Louis 
R.  R.,  24  Mo.  586 ;  also  Phillips  on  Meeh.  Lien,  ch.  VI.) — Rep. 


204  CASES  IN  CHANCERY.  [33  Eq. 

Sergent  v.  Sergent. 


Martha  A.  Sergent 

V. 

Augustus  G.  Sergent. 

1.  To  establish  desertion,  three  things  must  be  proved :  first,  cessation  of  co- 
habitation; second,  an  intent  in  the  mind  of  the  defendant  to  desert;  and, 
third,  that  the  desertion  was  against  the  will  of  the  complainant. 

2.  To  constitute  desertion,  the  deserter  must  absent  himself  or  herself  from 
the  other  party,  of  his  or  her  own  accord,  and  without  the  consent  and  againBt 
the  will  of  the  other. 

3.  That  one  is  the  deserter  in  whose  mind  the  desire  and  intent  to  destroy 
the  marriage  relation  exist,  though  the  other  may  be  the  one,  who,  by  open 
conduct,  throws  off  marital  duty  and  allegiance. 


On  final  hearing  on  bill  and  ex  parte  proofs.         , 
Mr.  Flavel  3IcGee,  for  complainant. 

The  Vice-Chancellor. 

This  is  a  suit  by  a  wife  for  divorce  for  the  cause  of  desertion. 
The  husband  makes  no  defence.  The  following  are  the  material 
facts:  The  parties  were  married  in  Boston,  in  1861,  and  imme- 
diately afterwards  took  up  their  residence  in  Jersey  City,  where 
they  continued  to  reside  together  until  April,  1876,  when,  it  is 
alleged,  the  defendant  deserted  the  complainant,  and  has  never 
since  lived  with  her.  For  some  years  prior  to  the  separation  the 
defendant  had  been  an  habitual  drunkard.  He  was  frequently 
arrested  and  committed  for  drunkenness.  He  was  without  means, 
and  his  intemperate  habits  rendered  him  unfit  for  labor  or  busi- 
ness. The  complainant  says,  for  two  years  prior  to  the  se{)ara- 
tion,  he  contributed  nothing  towards  the  support  of  his  family, 
but  she  had  supported  him.  When  he  left,  their  relations  were 
pleasant ;  he  went  without  warning  or  notice.  The  parting  is 
thus  described  by  the  complainant :  "  He  gave  me  no  reason  for 
going  away;  he  did  not  tell  me  he  was  going;  he  simply  went, 
and  did  not  come  back;  he  went  out  without  saying  anything 


6  Stew.]  OCTOBER  TERM,  1880.  205 

Sergent  v.  Sergent. 

in  particular,  and  never  came  back ;  I  had  given  him  no  provo- 
cation ;  on  the  contrary,  I  had  taken  good  care  of  him,  sup- 
ported him,  and  cared  for  him  when  he  came  home  drunk." 
After  he  left,  the  complainant  made  no  effort  to  find  him,  or  to 
ascertain  what  liad  become  of  him,  but  immediately  after  he  left, 
she  commenced  furnishing  him  with  money  through  a  friend, 
giving  him  $3  or  $4  whenever  he  called  for  it,  and  she  continued 
to  do  so  up  to  the  time  she  brought  her  suit.  The  contributions 
thus  made,  she  says,  averaged  ^3  a  week.  In  August,  1876, 
he  called  on  her  at  her  mother's  house,  in  Boston.  He  knew 
she  was  there.  How  he  obtained  this  information,  does  not  ap- 
pear. He  expected  to  enter  a  hospital  in  Boston,  to  undergo  a 
surgical  operation,  and  called  on  her  to  request  her  to  visit  him 
there.  She  went  and  had  an  interview  with  him,  and  gave  him 
money,  at  his  request,  to  pay  his  fare  from  Boston  to  New  York. 
On  this  occasion  she  did  not  ask  him  why  he  had  left  her,  nor 
whether  he  intended  to  return. 

As  portrayed  by  the  evidence,  the  defendant  is  certainly  a  very 
undesirable  husband.  That,  however,  is  not  the  question.  This 
court,  fortunately,  is  not  charged  with  the  duty  of  revising  or 
dissolving  undesirable  or  ill-assorted  matches.  The  question 
here  is,  does  the  evidence  show  a  case  of  desertion  within  the 
meaning  of  the  statute  ?  Mere  absence  by  a  husband  from  his 
wife  for  three  years  is  not  necessarily  desertion.  Rogers  v.  Rog- 
ers, 3  C.  E.  Gr.  44S;  Test  v.  Test,  4,  C.  E.  Gr.  34£ ;  Tate  v. 
Tate,  11  C.  E.  Gr.  55.  If  a  wife  leaves  her  husband,  and  he 
furnishes  her  with  money  for  her  support,  and  does  not  insist,  as 
a  condition  of  support,  that  she  shall  perform  her  duty  as  a  wife, 
although  he  entreats  her  to  come  back,  the  conduct  of  the  parties, 
in  such  case,  partakes  too  much  of  the  character  of  a  friendly 
arrangement  to  render  the  wife  a  deserter.  Goldheck  v.  Gold- 
hech,  3  a  E.  Gr.  ^. 

To  establish  desertion,  three  things  must  be  proved  :  First,  ces- 
sation of  coiiabitatiou ;  second,  an  intent  in  the  mind  of  the  de- 
fendant to  desert ;  and,  third,  that  the  desertion  was  against  the 
M-ill  of  the  complainant.  Sir  Creswell  Creswell,  in  Thompson  v. 
Thompson,  1   Sw.  &    Tr.  '231,  says:    "The   absence   and   ces- 


206  CASES  IN  CHANCERY.  [33  Eq. 

Sergent  v.  Sergent. 

tjation  of  cohabitation  must  be  in  spite  of  the  wisli  of  the  deserted 
party;  tiie  person  deserted  must  not  be  a  coDsenting  party." 
And  this  court  has  repeatedly  declared  that,  to  constitute  desertion, 
the  deserter  must  absent  himself  or  herself  from  the  other  party 
of  his  or  her  own  accord,  and  without  the  consent  and  against 
the  will  of  the  other.  Jennings  v.  Jennings,  S  Beas.  3S ;  Cook 
V.  Cooh,  Id.  S63;  3f cores  v.  Moores,  1  C.  E.  Gr.  S75 ;  Mel- 
downey  v.  Meldowney,  12  C.  E.  Gr.  338 ;  Taylor  v.  Taylor,  1 
Stew.  Eq.  S07.  That  one  is  the  deserter  in  whose  mind  the  desire 
and  intent  to  destroy  the  marriage  relation  exists,  though  the 
other  may  be  the  one  who,  by  open  conduct,  throws  off  marital 
duty  and  allegiance.  It  is  not  always  the  one  who  leaves  the 
matrimonial  habitation  that  is  the  deserter.  1  Bish.  on  M.  &  D. 
§  787.  If,  in  this  case,  the  wife,  while  the  husband  was  absent, 
laid  a  plan  to  keep  him  away,  and  so  far  executed  it  as  to  keep 
him  away  for  the  statutory  period,  her  purpose  all  the  time  being 
to  lay  the  foundation  for  a  suit  for  divorce,  his  absence,  though 
to  a  certain  extent  voluntary,  was  not  against  her  will,  but  just 
what  she  wanted,  and  would  not,  therefore,  be  cause  of  divorce. 
In  such  case  she  would  be  a  consenting  party ;  indeed,  she  would 
be  helping  her  husband  to  commit  a  wrong  against  her  in  order 
that  she  might  take  advantage  of  it. 

These  principles  must  govern  this  case.  Did  the  defendant  go 
away  and  stay  away  from  his  wife  without  her  consent  and 
against  her  will?  He  is  not  the  sort  of  a  husband  a  decent 
woman  would  be  anxious  to  live  Avith.  It  is  certain  she  made 
no  effort  to  lure  him  back ;  on  the  contrary,  almost  contempora- 
neously with  his  leaving,  she  made  provision  for  his  support,  so 
that  when  his  appetite  was  aroused,  or  he  was  hungry,  or  shelter- 
less, he  would  not  be  driven  to  her  home.  Her  conduct  in  this 
respect  cannot  be  attributed  to  love  or  pity.  Unless  there  was 
some  understanding  between  them,  which  has  not  been  disclosed, 
she  had  no  reason  to  suppose  he  Avould  not  return.  He  had  not 
told  her  he  would  not,  nor  does  it  appear  that  she  had  been 
notified  that  he  was  in  distress  when  she  made  arrangements  to 
have  aid  extended  to  him.  If,  when  she  found  he  did  not  return, 
her  heart  became  troubled,  and  she  felt  solicitous  for  his  welfare, 
the  most  natural  thing  for  her  to  have  done  would  have  been  to 


6  Stew.]  OCTOBER  TERM,  1880.  207 

Sergent  v.  Sergent. 

endeavor  to  find  him,  and,  if  possible,  induce  him  to  return 
to  his  home.  Besides,  it  seems  quite  mysterious  to  me,  if 
there  was  no  previous  understanding  or  arrangement,  and  if  it 
be  true  that  he  went  a\yay  without  reason  or  warning,  and  then 
remained  absent,  how  it  happened  that  she  knew  where  to  deposit 
money  so  that  it  would  reach  him,  and  he  knew  just  where  to 
apply  for  it. 

The  conduct  of  the  parties  when  they  met  in  Boston,  in  August, 
1876,  is  even  more  difficult  to  understand,  except  we  believe 
they  had  separated  by  agreement.  They  had  then  been  apart 
about  four  months ;  they  had  parted  pleasantly ;  the  husband's 
subsequent  conduct  had  been  mysteriously  unnatural.  Accord- 
ing to  the  wife's  story,  he  had  causelessly  and  foolishly  forsaken 
a  good  home,  where  he  had  food  and  shelter  and  kind  attention, 
that  he  might  lead  the  life  of  a  vagabond,  and  wander  about 
homeless  and  friendless.  There  is  no  explanation  of  his  conduct 
except  we  attribute  it  to  shame,  but  shame  seldom  troubles  a  man 
so  thoroughly  debauched  as  he  is  represented  to  have  been.  Now 
what  occurs  when  they  meet  ?  There  are  no  reproaches,  explana- 
tions or  inquiries.  Though  the  wife  did  not  know  why  he  had 
left  her,  she  does  not  ask  him,  nor  does  he  attempt  to  justify  or 
explain  his  conduct;  though  she  does  not  know  whether  he 
intends  to  return  or  not,  she  does  not  ask  him,  nor  does  he  tell 
her.  He  had  been  unfaithful  to  every  conjugal  duty,  yet  they 
meet  upon  perfectly  amicable  terms ;  the  wife  has  no  reproaches 
for  the  past,  and  no  curiosity  about  the  future.  Such  conduct  is 
inexplicable  except  their  separation  was  the  result  of  an  under- 
standing, and  the  defendant  left  his  wife  under  a  promise  that 
he  should  be  provided  for  in  the  future.  Then  it  is  easily  under- 
stood. 

The  court,  in  cases  of  this  kind,  must  examine  the  conduct  of 
the  parties  in  the  light  of  ordinary  experience,  with  caution 
enough  not  to  be  misled  by  false  appearances,  and  with  discern- 
ment sufficient  not  to  be  duped  by  tales  in  which  only  part  of 
the  truth  is  told. 

The  evidence  fails  to  convince  me  that  the  separation  shown 
in  this  case  was  a  desertion  by  the  husband.  A  divorce  must  be 
denied,  and  the  complainant's  bill  dismissed. 


208  CASES  IN  CHANCERY.  [33  Eq. 


Snvder  v.  Blair. 


Lauka  a.  Snyder 

V. 

John  A.  Blair  et  al. 

1.  In  ascertaining  the  sum  for  which  a  decree  for  deficiency  should  be  made, 
the  sum  for  which  the  mortgaged  premises  were  sold  must,  so  long  as  the  sale 
stands,  be  taken,  as  between  tlie  parties  to  the  suit,  as  a  conclusive  test  of  the 
value  of  the  mortgaged  premises. 

2.  On  such  an  inquiry,  the  court  is  not  at  liberty,  in  case  the  market  value  of 
the  premises  happens  to  exceed  the  sum  realized  at  the  sale,  to  deduct  the 
market  value  and  enter  a  decree  only  for  the  balance  of  the  mortgage  debt. 


On  petition,  affidavits  and  order  to  show  cause. 
Mr.  Thomas  N.  McCarter,  for  petitioners. 
Mr.  James  C.  McDonald,  for  complainant. 

The  Vice-Chancellor. 

The  principal  object  of  the  application  now  before  the  court  is 
to  have  the  decree  for  deficiency  made  in  this  cause  so  reduced, 
that  the  sum  for  which  it  stands  shall  represent,  not  the  differ- 
ence between  the  net  proceeds  of  the  mortgaged  premises  and  the 
amount  of  the  mortgage  debt,  but  simply  the  difference  between 
the  market  value  of  the  mortgaged  premises,  at  the  time  of  the 
sale,  and  the  mortgage  debt.  In  other  words,  the  petitioners  in- 
sist that  the  court,  in  ascertaining  the  sum  for  which  a  decree  for 
deficiency  shall  be  made,  may,  in  case  the  market  value  of  the 
mortgaged  premises  is  greater  than  the  sum  obtained  for  them  at 
a  judicial  sale,  disregard  the  test  of  value  fixed  by  the  sale,  and 
deduct  such  sum  from  the  mortgage  debt,  as  it  may,  upon  proofs, 
adjudge  to  be  their  value,  and  limit  its  decree  for  deficiency  to 
the  balance.  • 

The  following  summary  will  give  all  the  material  facts :  The 
petitioners  are  John  A.  Blair,  David  Young  and  Roderick  By- 
iugton.     Young  and  Byington,  together  with  one  Robert  W. 


6  Stew.]  OCTOBER  TERM,  1880.  209 

Snyder  v.  Blair. 

Leslie,  in  December,  1872,  purchased  of  William  V.  Snyder,  a 
tract  of  land  at  Woodside,  Essex  county,  for  which  they  agreed 
to  pay  $19,875.  On  the  conveyance  of  the  land  to  them,  they 
paid  $6,875  in  cash,  and  in  payment  of  the  balance  assumed  the 
payment  of  a  mortgage,  previously  executed  by  Snyder  on  the 
land,  for  $13,000.  Leslie  subsequently  conveyed  his  interest  in 
the  land  to  Bhiir,  who  assumed  Leslie's  liability  for  the  mort- 
gage debt.  Snyder  subsequently  purchased  the  mortgage,  and 
had  it  assigned  to  his  wife  (the  complainant  in  this  suit),  who,  at 
his  instance,  brought  this  suit  to  foreclose  the  equity  of  redemp- 
tion in  the  mortgaged  premises,  by  sale.  The  mortgaged  premises 
were  sold  in  December,  1879,  under  a  final  decree  made  in  July, 
1879,  for  $4,500,  leaving  a  deficiency  of  over  $10,000.  The 
petitioners  insist  that  at  the  time  of  the  sale  the  mortgaged  prem- 
ises were  worth  at  least  $11,000,  and  that  the  court  should, 
therefore,  in  ascertaining  the  deficiency  for  which  Mrs.  Snyder  is 
entitled  to  a  decree,  deduct  $11,000  from  her  mortgage  debt,  and 
enter  a  decree  for  the  balance  only. 

In  determining  the  question  raised  by  this  application,  I  shall 
regard  Mr,  Snyder  as  the  complainant  in  this  suit.  That,  I 
think,  is  his  true  position.  He  purchased  the  mortgage,  and 
paid  for  it  with  his  own  money,  ordered  suit  brought  on  it,  and 
has  since  controlled  the  suit.  By  the  agreement  between  Snyder 
and  his  grantees,  they  became  principals  in  respect  to  the  mort- 
gage debt,  and  he  their  surety.  By  their  assumption  they  be- 
came as  effectually  bound  to  him  for  the  payment  of  the  mortgage, 
in  case  the  mortgaged  premises  were  not  sold  for  a  sum  sufficient 
to  pay  it,  as  though  they  had  made  a  bond  directly  to  him.  No 
dispute  is  made  as  to  their  liability ;  the  question  is  as  to  the  ex- 
tent of  their  liability. 

The  question  presented  is,  in  my  judgment,  entirely  free  from 
difficulty.  This  proposition  seems  to  me  to  rest  on  authority 
which  cannot  be  questioned,  and  to  be  also  supported  by  the 
plainest  considerations  of  justice.  That  sum  for  which  prop- 
erty conveyed  in  pledge  for  the  security  of  a  debt  is  sold  at  judi- 
cial sale,  must,  so  long  as  the  sale  stands,  be  taken,  as  between 
the  parties  to  the  suit,  as  a  conclusive  test  of  its  value.     This,  as 

14 


210  CASES  IN  CHANCERY.  [33  Eq. 

Snyder  v.  Blair. 

I  understand  it,  is  the  rule  presented  by  our  statute.  The  seventy- 
sixtli  section  of  the  chancery  act  directs  "  that  it  sliall  be  lawful 
for  the  chancellor,  in  any  suit  for  the  foreclosure  or  sale  of  mort- 
gaged premises,  to  decree  the  payment  of  any  excess  of  the  mort- 
gage debt,  above  the  net  proceeds  of  sale,  by  any  of  the  parties  to 
such  suit  who  may  be  liable,  either  at  law  or  in  equity,  for  the 
payment  of  the  same."  Rev.  118.  The  same  rule  was  estab- 
lished by  the  courts  long  prior  to  the  adoption  of  any  statute  upon 
the  subject.  Globe  Insurance  Co.  v.  Lansing,  5  Cow.  380 ; 
Lansing  v.  Goelet,  9  Cow.  34-6.  The  opinion  of  Chancellor 
Jones,  in  the  case  last  cited,  contains  a  valuable  summary  of  all 
the  adjudications  bearing  upon  the  question  made  prior  to  1826. 
The  law,  I  think,  must  be  considered  so  firmly  settled  as  to  be 
beyond  alteration  by  the  courts. 

When  a  bond  and  mortgage  are  given  for  the  same  debt,  the 
bond  is  the  evidence  of  the  debt,  and  the  mortgage  is  merely  a 
security.  The  creditor  may  always  pursue  his  remedy  on  his 
bond,  regardless  of  the  security  afforded  by  his  mortgage.  His 
contract  does  not  require  him  to  resort  to  his  security  first. 
Until  his  debt  is  paid  or  discharged,  he  is  entitled  to  all  the 
remedies  afforded  by  the  law  for  its  collection.  If  he  desires  to 
have  his  pledge  converted  into  money,  by  judicial  sale,  and  the 
money  applied  in  discharge  of  his  debt,  he  must  proceed  by  suit, 
and  if  the  pledge  is  condemned  to  sale,  the  sale  is  made  by  the 
,  court.  The  court  is  really  the  vendor;  the  pledge  is  sold  by  its 
authority  and  under  its  process,  and  though  the  contract  is,  in 
form,  with  its  officer,  he  acts  merely  as  the  agent  of  the  court. 
For  this  reason  the  court  exercises  a  more  liberal  supervision  over 
such  contracts  than  those  of  any  other  class.  McCahill  v.  Equi- 
table Life  Ins.  Co.,  11  C.  E.  Gr.  531 ;  Hayes  v.  Stiger,  2  Stew. 
Eq.  196.  The  court  may  compel  a  purchaser  who  purchases  at 
a  sale  made  under  its  process,  to  specifically  perform  his  contract, 
by  proceedings  in  attachment.  Silver  v.  Campbell,  10  C.  E.  Gr. 
4,65;  Bowne  v.  Bitter,  11  C.  E.  Gr.  456.  If  the  pledge  is  sold 
for  a  sum  greater  than  is  required  to  pay  the  liens  to  which  it  is 
subject,  the  surplus  is  paid  to  the  pledgor ;  if  for  less  than  the 
amount  due  to  the  pledgee,  it  is  the  duty  of  the  court,  according 


6  Stew.]  OCTOBER  TERM,  1880.  211 

Snyder  v.  Blair. 

to  the  well-established  practice,  to  award  him  a  decree  for  the 
deficiency.  The  price,  however,  realized  at  the  sale,  whether  it 
be  more  or  less  than  is  required  to  pay  the  pledgor's  debt,  is  the 
only  known  legal  standard  of  value.  The  court  cannot  sell  the 
pledge  to  the  pledgee  for  one  price,  and  make  title  to  him  for  that 
price,  and  then,  in  adjusting  the  amount  remaining  due  to  him 
from  his  debtor,  compel  him  to  pay  a  much  larger  price.  If 
such  a  thing  could  be  done,  it  would  amount  to  this :  the  court 
would  nullify  the  sale  so  far  as  it  affected  the  interests  of  the 
vendor,  but  compel  the  vendee  to  keep  his  part  of  the  bargain, 
and  to  pay  for  the  property  a  price  he  never  agreed  or  consented 
to  give.     This  court  has  no  such  power. 

The  soundness  of  the  legal  rule  mainly  relied  on  in  support  of 
this  application  is  not  open  to  discussion.  It  is  this :  that  a 
surety  is  only  entitled  to  recover  of  his  principal  to  the  extent 
that  he  is  damnified.  Re-imbursement  is  all  that  he  can  ask.  If 
the  creditor  remits  his  debt,  as  a  gratuity  to  the  surety,  the  surety 
can  recover  nothing,  for  he  has  lost  nothing.  Burge  on  Surety- 
ship 359.  So  if  the  surety  extinguishes  the  debt  for  less  than 
the  whole  sum  due,  he  can  only  recover  what  he  actually  pays. 
Bomiey  v.  Seely,  £  Wend.  4^1 ;  Reed  v.  Norris,  2  Myl.  &  Cr. 
362 ;  Butcher  v.  Churchill,  IJf  Ves.  567.  It  is  unquestionable 
that  all  that  the  surety  in  this  case  is  entitled  to,  is  re-imburse- 
ment, but  in  ascertaining  what  sum  will  re-imburse  him  the  net 
proceeds  of  sale  must,  for  the  reasons  already  stated,  be  taken  as 
fixing  unalterably  the  limit  of  deduction. 

It  is  also  true  that  a  creditor  who  holds  a  pledge  as  security 
for  his  debt  cannot  have  both  his  debt  and  the  pledge.  If  a 
mortgagee,  after  obtaining  a  decree  of  strict  foreclosure  and  taking 
possession,  proceeds  to  collect  his  debt,  the  decree  of  foreclosure 
is  ipso  facto  opened,  and  the  debtor  let  in  to  redeem.  Osborne  v. 
Tunis,  1  Dutch.  633,  651.  But  when  the  pledge  is  converted  into 
money  by  judicial  sale,  even  if  the  creditor  is  the  purchaser,  it  is 
uot  true  that  he  has  both  debt  and  pledge.  In  that  case  the 
pledge  is  sold  to  pay  the  debt ;  the  debt  is  satisfied  to  the  extent 
of  the  money  realized,  but  no  further ;  the  interest  of  both  pledgee 


212  CASES  IN  CHANCERY.  [33  Eq. 

Snyder  v.  Blair. 

and  pledgor  passes  by  the  sale,  and  the  purchaser  stands  in  the 
riu-ht  of  a  new  title,  founded  upon  the  rights  of  both. 

Nor  did  the  purchase  of  the  mortgaged  premises  by  the  surety, 
in  this  case,  operate  as  an  extinguishment  of  the  debt.  That  is  the 
effect  of  a  purchase,  by  a  mortgagee,  of  the  equity  of  redemption 
in  mortgaged  premises,  under  a  judgment  at  law,  founded  upon 
the  same  debt  secured  by  his  mortgage.  In  such  case  he  pur- 
chases only  the  equity  of  redemption,  and  of  course  he  purchases 
subject  to  such  part  of  his  mortgage  debt  as  is  not  raised  by  the 
sale.  Now,  if  in  this  condition  of  affairs,  he  were  allowed  to 
collect,  out  of  other  property  of  the  mortgagor,  such  part  of  his 
debt  as  was  not  realized  by  the  sale  of  the  equity  of  redemption, 
he  would  get,  not  the  equity,  of  redemption,  but  the  whole  estate 
in  the  land,  and  the  mortgagor  would  thus  be  compelled  to  pay 
the  same  debt  twice.  To  prevent  this  injustice,  it  has  been  held 
that  a  sale  of  the  equity  of  redemption,  by  the  means  already 
mentioned,  operates  as  an  extinguishment  of  such  part  of  the 
mortgage  debt  as  is  not  paid  by  the  sale.  Tice  v.  Annln,  S  Johns. 
Ch.  1^5  ;  Woodruff's  Exrs.  v.  Black,  Sax.  338;  Hartshorne  v. 
Harlshorne,  1  Gr.  Ch.  34-^.  But  it  is  obvious  at  a  glance  that 
it  is  not  possible  to  apply  this  doctrine  to  the  case  under  considera- 
tion. The  two  cases  are  so  dissimilar  in  all  their  fundamental 
elements  that  it  would  be  a  waste  of  effort  even  to  mention  their 
prominent  distinctions. 

The  petitioners  are  not  entitled  to  any  deduction  from  the 
mortgage  debt  beyond  the  net  proceeds  of  sale. 

The  petitioners  also  ask  that  the  sale  may  be  set  aside.  They 
insist  that  a  sale  should  never  be  allowed  to  stand  when  it 
appears  that  property  worth  $11,000  has  been  sold  for  $4,500. 
The  sale  was  fairly  conducted,  and  seems  to  have  been  regular  in 
all  respects.  The  petitioners  were  present,  either  in  person  or  by 
counsel ;  there  is  no  pretence  of  accident,  surprise  or  mistake ; 
there  is  no  reason  to  suspect  fraud  or  other  evil  practice;  the 
property,  it  appears,  was  sold  for  the  largest  price  that  could  be 
obtained  for  it,  and  there  is  nothing  now  before  the  court  which 
will  justify  even  a  hope  that,  if  it  were  put  up  again,  a  better 
price  could  be  obtained.     Under  these  circumstances  the  court 


6  Stew.]  OCTOBER  TERM,  1880.  213 

Kip  V.  Kip. 

may  pity  the  petitioners  in  their  misfortunes,  but  it  is  powerless 
to  help  them.  But  the  purchaser  consents  that  the  sale  may  be 
set  aside  conditionally.  Under  this  consent,  an  order  will  be 
made  that  if  the  petitioners  shall,  within  twenty  days,  enter  into 
a  stipulation,  with  sureties  to  be  approved  by  the  court,. that  the 
mortgaged  premises  shall  be  sold  at  second  sale,  for  at  least 
§8,750,  and  shall  also,  within  the  same  period,  pay  the  costs  and 
fees  of  the  sale  heretofore  made,  and  the  taxed  costs  of  these  pro- 
ceedings, the  sale  shall  be  set  aside  and  a  new  sale  ordered,  but 
if  they  fail  to  do  so,  within  the  time  limited,  their  petition  must 
be  dismissed,  with  costs. 


Susan  Kip 

V. 

Henry  I.  Kip. 


1.  Equity  deals  with  equitable  estates  as  though  they  were  legal  estates. 

?.  By  the  common  law,  when  lands  become  vested,  during  coverture,  in  hus- 
band and  wife,  the  husband  is  entitled  to  the  exclusive  use  and  possession  of 
them  during  their  joint  lives. 

3.  This  rule,  so  far  as  it  excludes  a  wife,  during  coverture,  from  the  enjoy- 
ment of  property  thus  held,  was  abolished  by  the  statute  of  1852,  securing  to 
married  women  the  use  of  their  separate  property. 

4.  A  bill  which  fails  to  make  a  case,  which  if  admitted  or  proved  will 
entitle  the  complainant  to  a  decree,  must  be  held  bad  on  general  demurrer. 


On  demurrer. 

Mr.  W.  F.  Gaston  and  Mr.  Gilbert  Collins,  for  demurrant. 

Mr.  Thomas  M.  Moore  and  3Ir.  Joseph  D.  Bedle,  for  com- 
plainant. 

The  Vice-Chancellor. 

This  is  a  suit  by  a  wife  against  her  husband  and  others.     The 


214  CASES  IN  CHANCERY.  [33  Eq. 

Kip  V.  Kip. 

defendants  demur,  insisting  that  the  bill  shows  no  matter  of 
equity  entitling  the  complainant  to  relief. 

The  bill  alleges  that  Henry  I.  Kip,  the  husband  of  the  com- 
plainant, on  the  12th  day  of  October,  1859,  conveyed  several 
tracts  of  land  to  one  William  H.  Van  Vorst,  upon  certain  trusts. 
These  trusts  were,  that  the  trustee  should  permit  the  complain- 
ant and  her  husband,  during  their  joint  lives,  and  the  survivor, 
during  his  or  her  life,  to  possess  and  enjoy  the  lands,  and  to  take 
their  rents,  issues  and  profits  without  liability  to  account ;  and 
on  the  death  of  the  survivor  that  the  lands  should  go  to  such 
persons  as  the  husband  might  designate  as  his  devisees  by  will, 
or  in  case  of  his  failure  to  make  a  will,  then  to  his  heirs  at  law. 
The  complainant  further  alleges  that  she  and  her  husband 
resided  together  on  the  lands  so  conveyed  in  trust,  until  the  1st 
day  of  August,  1869,  when  her  husband,  of  his  own  accord,  and 
without  notifying  her  of  his  intention,  took  up  his  abode  with 
his  daughter  Agnes,  a  child  by  a  former  wife,  with  whom  he  has 
continued  to  reside  ever  since.  The  complainant,  in  the  mean- 
time, has  lived  in  the  dwelling  on  the  trust  property,  where 
she  and  her  husband  resided  together  prior  to  their  separation. 
The  bill  further  alleges  that  the  complainant's  husband,  since 
their  separation,  has,  in  connection  with  his  daughter  and  her 
husband,  executed  three  deeds,  purporting  to  convey  portions  of 
the  trust  property  in  fee,  for  an  aggregate  consideration,  as  shown 
by  the  deeds,  of  $40,840,  and  that  the  grantees  have  entered  into 
possession  of  the  lands  so  conveyed.  The  bill  also  alleges  that 
another  portion  of  the  trust  property  has  been  conveyed  by  the 
complainant's  husband  alone,  by  deed  purporting  to  convey  a  fee, 
and  that  he  received  as  consideration  therefor,  the  sum  of  $3,360. 
The  bill  then  avers  that  the  complainant's  husband,  on  the  1st 
day  of  April,  1873,  sold  the  timber  from  a  portion  of  the  trust 
property,  for  the  sum  of  $2,000,  and  that  the  timber  has  since 
been  cut  and  removed.  The  complainant  further  says  that  since 
her  husband  separated  himself  from  her,  he  has  neither  paid  nor 
•furnished  her  any  money,  and  has  contributed  nothing  to  her 
support  except  some  groceries  and  other  necessaries,  amounting 
in  the  whole  to  about  $325. 


6  Stew.]  OCTOBER  TERM,  1880.  215 

Kip  V.  Kip. 

This  is  the  case  made  by  the  bill.  Upon  these  facts  the  com- 
plainant insists  that  she  is  entitled  to  one-half  of  the  interest  or 
income  of  the  consideration-moneys  received  by  her  hnsband,  and 
to  that  end  an  account  should  be  ordered  ;  and  she  also  contends 
that  it  is  the  duty  of  the  court,  for  her  protection  and  security,  to 
take  possession  of  the  consideration-moneys  received  by  her  hus- 
band and  invest  them,  in  order  that  she  may  hereafter  receive 
her  fair  share  of  their  earnings. 

The  rights  in  dispute  are  purely  equitable,  but  here  they  must 
be  treated  as  though  they  were  legal  rights.  Courts  of  equity 
treat  trust  estates  as  though  they  were  legal  estates,  and  deal  with 
them  as  having  the  same  incidents,  properties  and  consequences 
that  belong  to  like  estates  at  law.  In  equity  they  are  alienable, 
devisable,  and  descendible  in  the  same  manner  as  legal  estates. 
In  dealing  with  them,  equity  follows  the  law.  Cushing  v.  Blake, 
3  Stew.  Eq.  689. 

On  the  argument,  the  ground  mainly  relied  on  by  the  demur- 
rants was,  that  during  the  joint  lives  of  these  parties,  the  husband 
is  entitled  to  the  whole  use  and  benefit  of  the  estate  in  contro- 
versy, to  the  exclusion  of  his  wife,  and  she  has  no  right,  there- 
fore, to  require  him  to  account,  or  to  compel  him  to  share  with 
her  anything  he  may  have  received.  That,  undoubtedly,  is  the 
rule  of  the  common  law.  When  an  estate  in  lands  becomes 
vested,  during  coverture,  in  husband  and  wife,  the  husband  is 
entitled  to  the  exclusive  possession  and  use  of  it  during  their 
joint  lives.  They  are  each  and  both  seized  of  the  entirety — ^er 
tout  et  non  per  my;  and  as  the  existence  of  the  wife,  by  the 
common  law,  is  merged  in  that  of  her  husband,  he  is  the  only 
person,  in  the  eye  of  the  law,  who  can  possess  or  deal  with  it. 
For  this  reason  it  has  been  adjudged  that  during  their  joint  lives 
the  wife  has  no  interest  in  or  control  over  an  estate  thus  held. 
Wychoff  V.  Gardner,  Spen.  556 ;  Washburn  v.  Burns,  5  Vr.  18 ; 
Bolks  V.  State  Trust  Co.,  12  C.  E.  Gr.  308.  But  the  chancellor 
has  recently,  sitting  as  ordinary,  held  that  the  statute  of  1852, 
securing  to  married  women  the  use  of  tiieir  separate  property, 
abolished  this  rule  of  the  common  law,  so  far  as  it  excludes  the 
wife,  during  coverture,  from  the  enjoyment  of  property  thus  held. 


216  CASES  IN  CHANCERY.  [33  Eq. 

Kip  V.  Kip. 

See  V.  Zabriskie,  1  Stew.  Eq.  4^2.  Like  effect,  it  is  said,  has  been 
given  to  .similar  statutes  by  the  courts  of  Pennsylvania  and 
Indiana.  Freeman  on  Partition  §  75.  The  adjudication  in  See 
V.  Zabriskie  must  rule  this  case.  I  therefore  hold  that  the  com- 
plainant has  a  sufficient  present  interest  in  the  property  men- 
tioned in  the  bill  to  entitle  her  to  maintain  this  action,  if  her 
bill,  in  other  respects,  exhibits  a  good  cause  of  action. 

But  conceding  that  the  complainant  has  a  right  to  the  imme- 
diate enjoyment  of  the  lands  held  in  trust,  and  that  her  estate  is, 
in  all  respects,  equal  with  that  of  her  husband,  still,  I  am  unable 
to  find,  in  the  facts  exhibited  by  her  bill,  any  ground  upon  which 
relief  can  be  given  to  her.  This  allegation  constitutes  the  very 
marrow  of  her  grievance :  that  her  husband  has,  by  deeds  which 
purport  to  convey  a  fee,  conveyed  lands  in  which  she  has  an 
estate  equal  with  his,  and  has  received  the  purchase-money 
thereof.  But  how  does  that  harm  her?  His  deed  cannot  convey 
or  touch  her  estate.  Even  if  he  and  she  held  the  legal  title  to 
these  lands,  his  deed  would  be  utterly  impotent  to  convey  or 
impair  her  rights.  In  fact,  his  deed  can  have  no  more  effect 
upon  her  rights  than  the  deed  of  a  stranger.  While  she  lives 
and  is  of  sound  mind,  nothing  short  of  a  written  instrument, 
signed  by  her,  will  pass  her  estate.  These  propositions  need  no 
demonstration. 

The  bill  also  alleges  that  the  grantees  of  the  husband,  about 
the  date  of  their  respective  deeds,  took  possession  of  the  land 
conveyed  to  each,  and  have  since  then  held  the  exclusive  posses- 
sion thereof.  The  grantees  are  not  parties  to  this  suit.  It  would 
not,  therefore,  be  proper  to  decide,  in  this  suit,  whether  a  simple 
allegation  that  the  grantees  have  held  exclusive  possession,  witli- 
out  more,  is  sufficient,  as  an  averment  of  an  ouster,  to  entitle  the 
oomplaimant  to  maintain  an  action  against  them.  As  at  present 
framed,  the  bill  makes  a  case  against  the  husband's  grantees,  if 
against  anybody,  but  not  against  him.  He  cannot  be  held  liable 
for  the  wrongs  of  his  grantees. 

The  nearest  approach  the  bill  makes  to  the  specification  of  a  cause 
of  action  is  found  in  the  averment  respecting  the  sale  and  removal 
of  timber ;  but  this,  I  think,  is  much  too  vague  and  uncertain  to 


6  Stew.]  OCTOBER  TERM,  1880.  217 

Kip  V.  Kip. 

afford  sufficient  foundation  for  a  decree.  This  averment  charges 
that  Henry  I.  Kip,  on  the  1st  day  of  April,  1873,  sold  the  timber 
on  a  portion  of  the  lands  held  in  trust,  to  a  person  whose  name  is 
unknown  to  the  complainant,  for  the  sum  of  $2,000,  and  upwards, 
as  the  complainant  has  been  informed,  and  that  the  timber  has 
since  been  cut  and  removed.  Whether  or  not  the  sale  was  carried 
into  effect,  or  who  cut  and  removed  the  timber,  the  bill,  it  will 
be  observed,  does  not  inform  us.  It  does  not  assert  that  the 
defendant  or  his  purchaser  cut  and  removed  it,  nor  that  the 
defendant  received  the  money  for  which  it  was  sold.  For  any- 
thing shown  by  the  bill,  the  complainant  herself  may  have  cut 
and  removed  the  timber.  If  every  fact  here  alleged  were  proved 
or  admitted,  no  case  would  be  made  against  the  defendant.  In 
order  to  make  a  case  against  him,  the  complainant  would  be 
required  to  go  bne  step  further  by  her  proofs  than  she  has  gone 
in  her  pleading.  She  would  be  required  to  prove  a  material  fact 
not  alleged  in  her  bill,  namely,  that  the  defendant  had  removed 
the  timber.  A  complainant  must  state  his  grievance,  and  also 
his  right  or  title  to  relief,  with  accuracy  and  clearness.  Story's 
Eq.  PI.  §  24-1.  He  must  make  a  case  by  his  bill,  which,  if 
admitted  or  proved,  will  entitle  him  to  a  decree.  1  Dan.  Ch. 
Pr.  S61. 
The  demurer  must  be  sustained,  with  costs. 


CASES 


ADJUDGED  IN 


THE  PREROGATIVE  COURT 


OF 


THE  STA.TE  OF  NEW  JERSEY, 

OCTOBER  TERM,  1880. 


Theodore  Runyon,  Esq.,  Ordinary. 


In  the  matter  of  the  propounding  for  probate  of  a  paper  writing 
purporting  to  be  the  last  will  and  testament  of  Joseph 
L.  Lewis,  deceased,  late  of  Hoboken,  and  a  paper  pur- 
porting to  be  a  codicil  thereto. 

A  testator  was  eighty-two  years  old  in  1873,  when  he  made  his  wilL — Held, 
that  if  it  be  conceded  that  he  was  miserly,  squalid,  dishonest,  profane  and 
irascible ;  that  he  canceled  a  codicil  to  his  will  merely  because  he  believed 
the  beneficiary  named  therein,  who  was  not  a  relation,  was  insincere  towards 
him ;  that,  in  1860,  he  revoked  a  trust  deed  in  the  nature  of  a  testamentary 
disposition  of  his  property  (it  appearing  that  he  believed  that  he  had,  by  its 
provisions,  retained  power  to  do  so) ;  that,  in  1867,  he  revoked  an  absolute 
gift  of  certain  stocks ;  and  that  he  gave  the  bulk  of  his  estate  to  his  executors 
in  trust  to  reduce  the  debt  incurred  by  the  United  States  in  subduing  the 
rebellion — he  having  no  legitimate  kindred  who  might,  by  the  creation  and 
execution  of  such  trust,  be  disinherited  or  disappointed  in  their  natural  ex- 
pectations— those  things  did  not  establish  testamentary  incapacity. 


Mr.  Robert  Gilchinst,  for  the  proponents. 

219 


220  PREROGATIVE  COURT.  [33  Eq. 

Lewis's  Case. 

Mr.  A.  Q.  Keashey,  3Ir.  Cortlandt  Parker  and  Mr.  Edwards 
Pierrepont,  of  New  York,  for  the  United  States. 

Mr.  John  P.  Stockton,  attorney-general,  for  the  state  of  New 
Jersey. 

Mr.  B.  Williamson  and  Mr.  Pussel,  of  New  York,  for  John 
S.  Cathcart  and  others. 

Mr.  J.  C.  Besson,  for  Jessie  Benson  and  her  children. 

Mr.  M.  W.  Niven,  for  the  overseer  of  the  poor  of  Hoboken. 

Mr.  Gilhooly  and  Mr.  Perry,  of  New  York,  for  Thomas  Lewis 
and  the  children  of  Mary  Lewis. 

The  Ordinary. 

The  testator,  Joseph  L.  Lewis,  then  of  Hoboken,  in  this  state, 
died  March  5th,  1877,  aged  about  eighty-six  years.  On  the  1st 
of  October,  1873,  he  executed,  in  Jersey  City,  in  the  office  of 
Messrs.  Gilchrist  &  McGill,  a  law  firm  then  existing,  of  high 
standing,  an  instrument  of  writing  of  that  date,  purporting  to 
be  his  last  will  and  testament.  It  was  executed  in  the  presence 
of  thi'ee  witnesses,  with  all  due  legal  formalities.  By  it  he  provided 
first  for  the  payment  of  his  debts  and  funeral  expenses,  and  then 
gave  as  follows :  To  John,  Lewis,  Margaret  and  Joshua  J.  Benson, 
children  of  his  friend,  Joshua  Benson,  of  Hoboken,  as  a  memorial 
of  his  regard  and  esteem,  the  house  and  lot  in  Hoboken  where  lie 
then  resided  (described  in  the  will  as  on  the  westerly  side  of  Bloom- 
field  street,  and  known  as  No.  326,  and  as  the  same  conveyed  to 

Note.— For  constructions  of  gifts  and  devises  for  the  benefit  of  the  country, 
or  for  the  payment  of  the  national  debt,  see  Newland  v.  Au'y-Gen.,  S  Meriv. 
684  ;  Nightingale  v.  Ooulbum,  5  Hare  4^4,  2  Phil.  594  ;  Ashton  v.  Longdate,  15 
Jur.  868;  United  States  v.  Fox,  52  N.  T.  5S0,  94  TJ.  S.  S15 ;  Dickson  v.  UniUd 
States,  125  Mass.  Sll. 

For  gifta  to  the  government  or  state  as  trustee,  see  Mitford  v.  Beyndds,  1 
Phil.  185;  Levy  v.  Levy,  S3  N.  Y.  99;  Atfy-Gen.  v.  Baker,  9  Rich.  Eq.  521. 


6  Stew.]  OCTOBER  TERM,  1880.  221 

Lewis's  Case. 

him  by  William  Machold  and  wife),  and  to  the  survivors  and 
survivor  of  them,  for  life ;  the  property,  at  the  death  of  the  sur- 
vivor, to  go  to  his  or  her  issue  in  fee,  and  if  no  issue,  then  to  his 
or  her  heir  or  heirs  at  law.  To  Be'nson  and  his  wife  tach  one-half  of 
a  bond  and  mortgage,  the  former  made  by  Benson  and  his  wife  and 
mother,  and  the  latter  given  by  Benson  and  his  wife  and  mother, 
on  the  house  in  which  Benson  resided  in  Hoboken,  ktiown  as 
Xo.  328  Bloomfield  street,  with  all  the  money  due  and  to  become 
due  thereon,  and  which,  at  the  testator's  death,  should  remain  un- 
paid, with  the  mortgaged  premises.  To  Magdalene  J.  Johnson, 
of  Falmouth,  in  Jamaica,  $10,000,  to  be  paid  to  her  as  follows : 
§500  every  six  months  for  the  first  three  years  after  his  death ; 
§3,500  at  the  end  of  the  fourth  year,  and  the  remaining  §3,500 
at  the  end  of  the  fifth  year ;  and  he  requested  that  she  would 
pay  to  her  aged  aunt,  Frances  Grace,  §300  a  year,  in  equal  quar- 
terly payments,  so  long  as  the  latter  should  live.  To  Marianne, 
Hermann,  Lewis  and  Lily  Batjer,  children  of  his  friend  Her- 
mann Batjer,  of  the  city  of  New  York,  by  his  deceased  wife 
Marianne,  each  §1,000,  and  directed  that  those  sums  of  money 
should  be  paid  by  his  executors  to  Hermann  Batjer  in  trust,  to 
invest  them  for  the  children  in  United  States  bonds,  or  stocks  of 
the  state  of  New  York,  and  apply  the  interest  thereof  to  the 
maintenance  and  support  of  the  children,  or  accumulate  and  capi- 
talize the  interest  for  them,  as  he  should  see  fit,  and  pay  to  each 
of  them,  when  he  or  she  should  reach  the  age  of  twenty-one 
years,  his  or  her  §1,000,  and  the  interest  thereon  capitalized.  To 
Jennie  Hatfield,  daughter  of  his  friend.  Gen.  James  T.  Hatfield, 
§1,000,  to  be  paid  to  her  father  by  his  executors,  on  a  similar 
trust  for  her  as  that  declared  in  reference  to  the  gift  to  the  chil- 
dren of  Mr.  Batjer.  To  Nellie,  Madeline  and  John  Lewis, 
children  of  his  friend,  John  S.  Harberger,  of  the  city  of  New 
York,  §5,000,  to  be  divided  between  them  equally ;  and  he  di- 
rected that  the  money  be  paid  to  their  father,  on  a  similar  trust 
for  them.  To  Margaret  AVolfe,  daughter  of  his  friend,  John 
Wolfe,  of  the  city  of  New  York,  §5,C00,  to  be  paid  to  her 
father  on  a  similar  trust  for  her.  To  his  long-tried  and  faithful 
friend,  George  D.  H.  Gillespie,  of  the  city  of  New  York,  §10,000. 


222  PREROGATIVE  COURT.  [33  Eq. 

Lewis's  Case. 

To  his  executors,  $5,000  in  trust,  to  pay  that  sum  over  to  the 
trustees  of  the  Five  Points  House  of  Industry,  in  the  city  of 
New  York  (incorporated  in  1854),  or  to  its  treasurer  for  the 
time  being,  to  be  applied  to  the  uses  thereof  To  liis  executors, 
$500  on  the  like  trust,  for  the  Woman's  Hospital  of  the  City 
of  New  York.  He  then  directed  and  enjoined  his  executors  and 
their  successors  in  the  execution  of  liis  will  and  the  administra- 
tion of  his  estate,  to  set  apart  from  his  estate  $2,000,  and  invest 
the  money  in  United  States  bonds  or  New  York  state  stocks,  and 
keep  it  permanently  invested  in  good  securities,  and  use  the  in- 
terest, and  so  much  of  the  principal  as  might  be  necessary,  in 
keeping  his  burial-ground  in  Greenwood  cemetery,  and  the  vault 
therein,  in  perfect  order  and  repair,  renovating  the  vault  when 
necessary;  and  he  directed  that  if  it  should  not  be  necessary  at 
any  time  to  use  all  the  interest  for  that  purpose,  the  surplus 
interest  should  be  capitalized  and  kept  invested  in  like  manne 
as  the  principal  sum,  and  be  applied  to  the  same  purpose.  He 
next  made  the  following  bequests  of  keepsakes : 

"  First.  To  my  friend,  James  M.  Morrison,  president  of  the  Manhattan  Bank, 
Kew  York  city,  my  gold  duplex  watch,  numbered  8,468,  made  by  Cooper, 
London  (to  mark  the  vigils  kept  by  him  over  the  pet  lamb). 

"Second.  To  John  Wolfe,  his  choice  of  my  two  line-engraved  pictures,  La 
Maddalena  del  Corregio,  by  Longhi,  1809,  proof  impress ;  and  a  picture  of 
Venus  by  Titian,  engraved  by  Pound. 

"  Third.  To  George  D,  H.  Gillespie,  a  line-engraved  picture,  '  Ora  Sesta  de 
Nptte,'  from  a  painting  by  Eafael,  by  Toraas,  1806 ;  also,  my  large  engraved 
picture,  '  Weighing  the  Deer,'  from  a  painting  by  Fred.  Taylor,  engraved  by 
Atkinson. 

"  Fourth.  To  John  S.  Harberger,  the  duplicate  engraved  picture, '  La  Madde- 
lena  del  Corregio,'  proof,  1809 ;  also,  a  large  engraved  picture  of  Rome ;  also, 
a  book,  Encyclopoedia  of  Grardening,  by  J.  C.  Loudon,  London,  1827. 

"Fifth.  To  Eobert  Elder,  my  best  fishing-rod,  agate-mounted  guides,  and 
German-silver  reel  to  match  ;  and  a  book,  Izaak  Walton's  Complete  Angler, 
plates,  Bagster's  edition,  London. 

"  Sixth.  To  Maggie  Benson,  daughter  of  Joshua  Benson,  my  Oxford  edition 
of  the  Holy  Bible,  and  my  New  York  edition  of  the  Book  of  Common  Prayer, 
to  match. 

"Seventh.  To  Jennie  Hatfield,  in  this  my  will  before  mentioned,  my  diamond 
brooch,  the  design  of  which  is  a  rose  flower,  and  a  book  entitled  '  Milton'ft 
Paradise  Lost,'  two  vols.,  plates,  London  edition,  1816. 


6  Stew.]  OCTOBER  TERM,  1880.  223 

Lewis's  Case. 

"Eighth.  To  Joshua  Benson,  my  hunting-knife,  with  rifle  pistol  attached; 
also,  an  engraved  picture,  '  Castle  of  Heidelberg ; '  also,  a  book  entitled 
'Health,  Diet  and  Regimen,'  by  Dr.  Graham,  London,  1842;  also.  Col. 
Hawker  on  '  Shooting,'  plates,  London  ed.,  1830 ;  also,  all  my  household  fur- 
niture not  specifically  bequeathed. 

"  Ninth.  To  John  Benson,  my  case  of  Colt's  revolving  pistols,  made  for  me  to 
go  to  the  war  of  1861. 

"  Tenth.  To  Lewis  Benson,  my  case  of  pistols  with  barrels  one  inch  long,  but 
nevertheless  effective;  also  my  salmon  and  trout  fishing-rod,  with  reels  to 
match,  flies,  &c. 

"  Eleventh.  To  my  friend  Eobert  Gilchrist,  now  attorney-general  of  the  state 
of  New  Jersey,  my  Pompeii  ring  (monogramic),  embracing  the  portraits  of 
Socrates,  Sappho  and  Plato,  obtained  by  me  at  Pompeii,  Italy,  in  1833;  and 
also  an  autograph  letter  from  Thomas  Jefferson,  author  of  the  Declaration  of 
American  Independence,  dated  at  Monticello,  October  10th,  1824,  to  Joseph 
L.  Lewis,  No.  3  Wall  street,  New  York." 

He  then  gave,  devised  and  bequeathed  all  the  rest,  residue  and 
remainder  of  his  estate,  real  and  personal,  and  of  every  kind 
whatever,  of  which  he  might  die  seized  and  possessed,  and  to 
which  he  might  at  his  death  be  entitled,  to  his  executors  in  trust, 
to  expend  and  apply  it  in  reducing  the  national  debt  of  the 
United  States  of  America,  contracted  in  the  cause  of  the  rebellion 
of  1861 ;  and  he  provided  that  in  the  execution  of  that  trust  his 
executors,  as  trustees,  might  use  their  discretion  as  to  the  manner 
of  applying  the  residue  and  remainder  to  the  reduction  of  the 
debt,  but  he  strictly  enjoined  them  that  they  should  personally 
superintend  the  application  of  it,  that  there  might  be  as  little 
waste  of  it  as  possible,  and  that  it  might  not  be  diverted  to  other 
uses  by  dishonest  officials ;  and,  lastly,  he  appointed  his  friends 
George  D.  H.  Gillespie  and  John  Wolfe,  executors  of  his  will, 
exempting  them  from  all  accountability  for  any  diminution  in 
the  value  of  his  estate,  real  and  personal,  by  reason  of  the  failure 
or  decrease  in  value  of  any  of  the  securities  in  which  it  might  be 
invested,  or  by  reason  of  the  failure  or  decrease  in  value  of  any  secu- 
rities in  which  they  might  invest  it,  or  any  part  of  it ;  provided,  that 
at  the  time  of  the  investment  by  them  the  securities  in  which  they 
invest  appear  reasonably  good  to  an  ordinarily-careful  man ;  and 
he  thereby  revoked  all  former  wills. 

On  the  5th  of  June,  1875,  at  the  same  place,  in  the  presence 


224  CASES  IN  CHANCERY.  [33  Eq. 

Lewis's  Case. 

of  three  witnesses,  the  testator  executed,  with  clue  formality,  a 
codicil  of  that  date  to  the  will,  by  which  he  ratified  and  confirmed 
the  will,  except  so  far  as  any  part  thereof  should  be  revoked 
thereby,  and  he  thereby  revoked  the  gifts  to  Joshua  Benson  and 
his  wife  and  children,  directing  that  the  subjects  of  the  revoked 
devises  and  bequests  fall  into  the  residue  of  his  estate  and  be  dis- 
posed of  accordingly  by  the  will. 

The  will  and  codicil  are  propounded  for  probate  by  Messrs. 
Gillespie  and  Wolfe,  the  executors,  and  the  admission  of  them 
to  probate  is  opposed  by  John  S.  Cathcart  and  others,  claiming 
to  be  collateral  blood  relations  of  the  testator,  the  state  of  New 
Jersey,  the  overseer  of  the  poor  of  the  city  of  Hoboken,  and 
Thomas  Lewis,  and  the  children  of  his  sister  Martha,  claiming 
to  be  lineal  descendants,  the  former  the  son,  and  the  latter  the 
grandchildren  of  the  testator,  and  the  admission  of  the  codicil  to 
probate  is  opposed  by  Jessie,  wife  of  Joshua  Benson,  and  their 
children.  Jane  H.  Lewis,  who  claimed  to  be  the  testator's 
widow,  and  opposed  the  will  and  codicil,  withdrew  from  the  con- 
test before  the  hearing.  As  before  stated,  the  instruments  in 
question  were  executed  with  all  due  legal  formalities.  The  testa- 
mentary witnesses  were  satisfied  that  the  testator  had  testamentary 
capacity  at  the  time.  From  the  testimony  of  Mr.  McGill,  by 
whom  the  will  and  codicil  were  drawn,  and  who  had  been 
acquainted  with  the  testator  for  five  or  six  years  before  the  will 
was  drawn,  and  had  occasionally  transacted  legal  business  for 
him,  it  is  evident  that  the  testator  had  full  capacity  in  every 
respect.  He  says  the  testator  appeared  to  thoroughly  compre- 
hend the  act  he  was  doing ;  that  he  appeared  to  be  of  sound  and 
disposing  mind,  and  of  good  memory ;  that  the  testator  gave 
more  consideration  and  thought  to  the  making  of  the  will  than 
he  (Mr.  McGill)  thought  necessary  ;  that  ten  days  or  two  weeks, 
or  perhaps  more,  before  the  will  was  made,  the  testator  told  him 
that  he  desired  to  have  him  draw  his  will ;  that  it  was  a  matter 
about  which  he  wished  him  to  exercise  the  greatest  care;  that  he 
desired  to  have  the  instrument  so  drawn  that  it  could  not  be 
broken,  and  that  he  wished  him  to  give  him  the  skeleton  of  a 
will — that  is,  the  formal  commencement,  the  words  with  which 


6  Stew.]  OCTOBER  TERM,  1880.  225 

Lewis's  Case. 

a  bequest  or  devise  is  usually  begun,  and  the  formal  concluding 
words ;  that  the  testator  then  prepared,  in  his  own  handwriting 
a  paper  intended  as  a  basis  on  which  the  will  was  to  be  drawn 
(it  is  still  extant,  and  was  produced  in  the  cause),  and  brought 
it  to  him  and  talked  over  with  him  each  clause  in  it,  and  then 
requested  him  to  draw  the  will,  adhering  to  the  ideas  embodied 
in  that  paper  as  the  testator  had  himself  drawn  it,  and  had  im- 
parted them  to  him  at  that  conference ;  and  he  says  that  he  drew 
such  a  will,  having  at  the  time  the  paper  which  the  testator  had 
drawn.  He  further  says  that  there  were  conferences  between  him 
and  the  testator  on  the  subject  of  the  will,  both  at  his  office  and 
the  testator's  house.  What  Mr.  McGill  terms  an  intermediate 
draft  of  the  will  was  made  by  him,  which  was  not  executed, 
because  it  was  drawn  merely  for  the  purpose  of  convenient  con- 
sideration of  the  provisions  of  the  will  to  be  discussed  and  cor- 
rected, and  because  it  did  not  include  the  bequests  of  the  keep- 
sakes, a  list  of  which  the  testator  subsequently  gave  him  to  put 
in  the  will,  and  which  he  inserted  accordingly.  From  that  inter- 
mediate draft,  the  will  which  was  executed  was  copied.  Mr. 
McGill  says  that  he  requested  the  testator  to  explain  what  was 
meant  by  the  language  used  in  the  bequest  of  the  testator's  watch 
to  Mr.  Morrison,  president  of  the  Manhattan  Bank,  "to  mark 
the  vigils  kept  by  him  over  the  pet  lamb,"  and  the  testator 
replied  that  Mr.  Morrison  would  understand  it.  It  appears  to 
have  been  a  reference  to  the  bank  itself,  as  the  object  of  the 
legatee's  fostering  care  and  assiduous  attention.  Mr.  McGill 
testifies  that  the  testator  told  him  that  all  of  his  real  estate  was 
mentioned  in  the  will,  and  that  he  had  a  box  in  Manhattan 
Bank  in  New  York  city,  containing  stocks  and  bonds,  and  he 
desired  to  know  from  Mr.  McGill,  according  to  what  law  the 
bonds  and  stocks  in  New  York  city,  would,  on  his  death,  be 
administered,  and  requested  him  to  be  sure  to  draw  the  will  in 
such  a  manner  that  they  would  be  disposed  of  by  it.  He  told 
Mr.  McGill  that  he  had  been  an  engraver,  and  exhibited  to  him 
an  autograph  letter  of  thanks  from  Thomas  Jefferson  as  evidence 
that  he  had  been  an  expert  in  his  business ;  and  he  showed  him 
engravings,  also.     Mr.   McGill   says  that  at  the  time  of  the 

15 


226  CASES  IN  CHANCERY.  [33  Eq. 

Lewis's  Case. 

execution  of  the  codicil  (he  drew  that  also)  the  testator  was 
perfectly  aware  of  the  act  he  was  doing,  and  appeared  to  be  of 
sound  and  disposing  mind  and  of  good  memory.  He  says  he 
saw  the  testator,  and  conversed  with  him  frequently  between  the 
time  of  the  execution  of  the  will  and  the  time  of  executing  the 
codicil.  The  testator  appears  to  have  communicated  to  him  his 
reason  for  the  change  made  by  the  codicil,  and  also  the  reason 
for  the  provision  for  Benson  and  his  family  in  the  will  which  it 
was  the  testator's  design  by  the  codicil  to  annul,  and  for  which 
purpose  the  codicil  was  executed.  The  reason  for  the  provision 
in  the  will  was  that  Benson  had  been  very  kind  to  the  testator, 
and  the  reason  for  making  the  codicil  was  that  the  testator  had 
become,  after  the  making  of  the  will,  dissatisfied  with  Benson's 
conduct  towards  him.  The  particular  cause  of  the  change  of 
purpose  was,  as  the  testator  stated  to  Mr.  McGill,  that  the  testa- 
tor was  convinced  that  Benson  had  dealt  unfairly  with  him  in 
regard  to  money  due  to  him  from  Benson,  and  felt  satisfied  that 
Benson's  attention  to  him  was  insincere,  and  arose  from  a  merely 
mercenary  motive,  the  expectation  of  obtaining  substantial  valu- 
able remembrance  by  the  testator  in  the  distribution  of  his  prop- 
erty by  will.  There  would  seem  to  be  no  ground  for  question- 
ing the  testator's  capacity  to  make  a  testamentary  distribution  of 
his  property,  so  thoroughly  does  he,  by  the  testimony  of  the  sub- 
scribing witnesses,  and  the  internal  evidence  of  the  will  itself, 
appear  to  have  been  possessed  of  all  the  legal  requisites  to  such 
an  act. 

It  is  urged,  however,  on  the  part  of  the  contestants,  that  he 
was  a  kleptomaniac,  exhibiting  a  propensity  to  pilfer  in  the 
larceny  of  articles  of  very  insignificant  value ;  that  he  became, 
towards  the  close  of  his  life,  very  parsimonious ;  that  he  endeav- 
ored to  defraud  the  persons  entitled  to  the  estate  of  one  who  had 
been  his  faithful  servant ;  that  he  made  unfounded  charges  of 
theft  of  his  property  against  a  person  in  his  employ  in  his  house; 
that  he  used  profane  language  and  was  unclean  and  careless  in 
his  habits  of  life  ;  that  he  was  oblivious  of  the  fact  that  in  July, 
1858,  he  had  disposed  of  his  property  by  a  deed  of  trust ;  that 
he  was  under  a  delusion  as  to  a  gift  of  $10,000  which  he  made 
to  John  S.  Cathcart  in  1861;  the  alleged  delusion  consisting  in 


6  Stew.]  OCTOBER  TEUM,  1880.  227 

Lewis's  Case. 

his  couviction  that  the  gift  was  in  trust,  while  it  was,  as  the  con- 
testants allege,  in  fact  absolute  and  for  Cathcart's  sole  benefit ; 
and  that  he  labored  under  other  delusions  as  to  the  malign  inten- 
tions of  others  towards  him,  to  do  him  mortal  injury ;  and  it  is 
urged  that  these  things  connected  with  the  fact  that,  almost 
entii'ely  ignoring  his  relations,  he  gave  the  great  body  of  his 
large  fortune  to  be  used  in  paying  the  debt  of  the  United  States 
incurred  by  reason  of  the  rebellion  of  1861,  taken  all  together, 
show  a  mind  deranged  and  deprived  of  the  requisites  of  testa- 
mentary capacity.  Miserly  disposition  and  habits,  unclean  modes 
of  life,  dishonesty,  even  to  theft,  profanity  aMd  violence  of  temper, 
of  themselves  do  not  affect  the  claim  to  testamentary  capacity  ; 
for  obviously,  a  mau  may  be  a  thief,  a  miser,  unclean,  profane 
and  of  ungovernable  temper,  and  yet  have  testamentary  capacity. 
But  it  is  argued  that  where,  as  it  is  insisted  it  was  in  this  case,  they 
are  found  where  they  did  not  previously  exist,  they  indicate 
mental  derangement,  and  are  the  evidences  of  a  want  of  the 
qualifications  which  go  to  make  up  testamentary  capacity.  But 
if  it  be  conceded  that  all  that  is  claimed  by  the  caveators  on 
this  head  has  been  proved  (a  concession  which  it  would  be  by  no 
means  just  to  make),  the  facts  show  no  want  of  capacity.  The  tes- 
tator spent  his  life  in  the  accumulation  of  property,  and  up  to 
his  death  was  devoted  to  the  acquisition  of  wealth.  He  was 
never  married  and  had  no  relations  with  whom  he  associated. 
Indeed,  it  is  alleged,  and  all  the  evidence  in  the  cause  on  the 
subject  is  in  that  direction,  that  he  was  of  illegitimate  birth,  the 
son  of  a  West  Indian  woman  of  African  descent.  When  his 
circumstances  are  considered,  it  would  not  have  been  surprising 
if  his  old  age  had  presented  such  characteristics  as  are  imputed. 
It  is  most  manifest,  however,  from  the  testimony  of  Mr.  McGill 
and  others,  that  when  he  made  the  will  and  codicil  he  was  pos- 
sessed not  only  of  testamentary  capacity  to  the  requisite  extent  to 
enable  him  to  dispose  of  his  property  by  will,  but  of  a  shrewd 
and  discerning,  firm,  self-reliant  and  self- asserting  mind  and 
disposition.  He  knew  what  property  he  had,  and  he  selected 
with  great  care  and  discrimination  the  objects  of  his  bounty. 
It  is  insisted  on  the  part  of  the  Bensons  that  he  labored  under 


228  CASES  IN  CHANCERY.  [33  Eq. 

Lewis's  Case. 

a  delusion  as  to  Benson  when  he  made  the  codicil.     When  he 
made  the  will  he  believed  in  the  disinterestedness  of  Benson's 
service  to  him  and  had  complete  confidence  in  his  integrity,  and 
hence  the  provision  for  him  and  his  in  that  instrument.     But 
after  the  making  of  the  M'ill  he  became  convinced  that  Benson 
was  not  only  insincere,  but  that  he  had  dealt  unfairly  with  him, 
or  had  intended  to  do  so,  and  hence  the  change.     Benson  says 
the  change  of  disposition  towards  him  arose  from  the  fact  that  he 
had  pinned  a  duplicate,  unsigned  receipt,  purporting  to  be  from 
the  testator  to  him  for  money  receipted  for  by  the  testator,  on 
the  bond  of  Benson  and  his  mother  held  by  the  testator.     It  is 
difficult  to  understand  why  Benson  attached  the  unsigned  receipt 
to  the  bond,  and,  on  the  other  hand,  perhaps  the  testator  was  not 
warranted   in   a   conclusion  unfavorable  to   Benson's   integrity 
from  the  circumstance.     But  there  may  have  been  other  reasons 
which  were  not  communicated  to  Benson.     Mr.  McGill  says  the 
testator  gave,  as  his  reason  for  the  change  of  intention  towards 
Benson,  that  the  latter  would  not  pay  him  what  he  owed  him, 
and  made  unfounded  excuses  for  his  default  in  payment.     But 
whatever  may  have  been  the  occasion  of  the  change,  it  was  not, 
it  is  admitted,  without  a  reason  ;  and  if  the  testator  had  cause- 
lessly and  of  the  merest  caprice  changed  his  intentions  towards  . 
Benson  in  a  matter  of  testamentary  bounty,  the  fact  could  have 
no  weight  against  the  validity  of  the  will  or  codicil.     Of  course, 
it  could  in  no  case  have  any  against  the  former,  foi  it  is  the 
codicil  which  evidences  the  change  of  intention ;  the  will,  it  is 
claimed,  Avas  right,  and  it  is  not  alleged  that  the  testator  wag 
under  any  delusion  as  to  Benson  when  that  was  made.     It  is  to 
be  remembered  that  Benson  was  not  a  relation  of  the  testator, 
and  therefore  had  no  claim  on  his  estate  from  kinship.     His 
expectation  of  a  gift  by  the  will  was  based  on  his  claim  for  com- 
pensation for  services  rendered  to  the  testator  in  a  business  way. 
Nor  is  there  any  evidence  of  delusion  in  regard  to  the  trust 
deed  before  referred  to,  by  which  disposition  of  the  testator's 
property,  to  take  effect  after  his  death,  was  made.     He,  in  fact, 
revoked  the  deed.     It  is  dated  in  July,  1858,  and  his  receipt  to 
the  trustee  for  the  property  is  dated  in  December,  1860.     The 


6  Stew.]  OCTOBER  TERM,  1880.  229 

Lewis's  Case. 

iustrument  was  evidently  (and  is  proved  to  have  been)  of  a  testa- 
mentary character,  designed  to  insure  a  disposition  of  his  estate 
after  his  death,  without  the  cost  of  protracted  litigation.  It  con- 
tained the  following  initial  provision  in  the  declaration  of  the 
trust : 

"  To  take  possession  of  and  hold  all  and  singular  the  personal  estate  above 
mentioned,  during  the  term  of  my  natural  life,  subject  to  my  written  order  and 
disposition  thereof,  or  any  part  thereof;  and  to  collect  all  dividends,  interest 
or  income  arising  therefrom,  and  to  pay  the  same  to  me  or  to  my  order,  from 
time  to  time,  as  the  same  are  collected." 

And  then  follow  the  provisions  which  were  to  take  effect  after 
his  death.  It  will  be  seen  that  the  instrument  provides  that  the 
funds  were  to  be  held  during  his  life,  "  subject  to  his  written  order 
and  disposition.^'  This  he  undoubtedly  understood  to  give  him 
a  power  of  revocation.  In  Forshaw  v.  Welsby,  30  Beav.  ^IfS, 
a  voluntary  settlement  made  by  one  hx  extremis  on  his  family,  and 
containing  no  power  of  revocation  on  his  recovery,  was  set  aside 
on  his  application,  on  the  ground  that  it  was  not  executed 
with  the  intention  that  it  should  be  operative  in  case  of  his  re- 
covery from  his  illness.  See,  also,  Garnsey  v.  Mundy,  9  C.  E. 
Gr.  ^4^,  and  cases  there  cited.  The  testator  believed  that  he 
had  power  to  revoke  the  trust,  and  that  he  had  effectually  done 
so.  Whether  he  had  such  power  or  not  is  a  question  of  law. 
And  whether  the  trust,  if  it  exists,  prevents  the  operation  of  the 
will  as  to  any  of  the  testator's  property,  is  a  matter  which  does 
not  enter  into  the  consideration  of  the  question  now  before  me, 
and  can  have  no  influence  in  determining  whether  the  testator 
had  testamentary  capacity. 

The  testator,  in  1861,  gave  to  John  S.  Cathcart  one  hundred 
shares  of  stock,  and  subsequently  required  him  to  return  the 
proceeds  thereof  to  him,  alleging  that  the  property  was  given 
upon  a  trust  for  the  benefit  of  others.  The  testator,  after  the 
gift  was  made,  became  dissatisfied  with  Cathcart's  action,  and 
believing  him  to  be  chargeable  with  a  gross  dereliction  of  duty 
under  the  trust,  demanded  the  return  to  him  of  the  fund.  Cath- 
cart acceded  to  and  complied  with  the  demand.  He,  it  is  true, 
denied  the  existence  of  the  trust,  declaring  that  the  gift  was  un- 


230  PREROGATIVE  COURT.  [33  Eq. 

Lewis's  Case. 

conditional,  but  he  nevertheless  yielded  to  the  demand,  and 
never  once  even  suggested  that  it  arose  from  a  disordered  mind. 
That  the  testator  understood  that  the  gift  was  not  absolute,  is 
abundantly  evident.  He  endorsed  Cathcart's  letter,  dated  Sep- 
tember 21st,  1867,  to  his,  Catiicart's,  agent,  directing  him  to  hand 
over  the  $10,000  (the  amount  of  the  gift),  on  the  testator's  giving 
a  receipt  for  that  sum  in  full  of  all  demands,  with  a  memorandum 
that  the  $10,000  were  "intrusted  to  Cathcart  for  a  special  pur- 
pose unfulfilled  &c.  &c."  There  is  other  evidence  also,  leading 
to  the  conclusion  that  the  gift  was,  in  fact,  upon  a  trust  for  the 
benefit  of  certain  persons  in  Jamaica,  who  are  said  to  have  been 
the  illegitimate  relations  of  both  the  testator  and  Cathcart. 
Apart  from  these  considerations,  and  regarding  it  as  Cathcart 
claims  to  have  done,  the  transaction  would  be  merely  that  of  an 
absolute,  unconditional  gift  by  one  to  another,  afterwards  cause- 
lessly revoked,  and  the  subject  of  it  voluntarily  returned  by  the 
donee  to  the  donor  on  demand.  It  is  needless  to  say  that  it  pre- 
sents no  evidence  of  disordered  intellect  or  incapacity. 

Nor  is  the  fact  that  the  testator  devoted  a  very  large,  and  by 
far  the  greater  part,  of  his  estate  to  the  purpose  of  aiding  in 
paying  off  the  debt  incurred  in  subduing  the  rebellion,  evidence 
of  incompetency.  Bequests  of  like  character  have  been  judi- 
cially maintained.  Nightingale  v.  Goulburn,  5  Hare  4^4- >  ^' 
C.  on  appeal,  2  Phil.  59^;  Tudor  on  Charitable  Trusts  IJf,,  15 ; 
The  Thellusson  Case  {Thellusson  v.  Wood/ord),  4  Ves.  237; 
British  Museum  v.  White,  2  Sim.  &  Stu.  695 ;  see  2  Story's 
Eq.  Jur.  §  1164"  -The  question,  however,  is  not  whether  a  gift 
to  such  a  charity  will  be  upheld,  but  whether  the  fact  that  the 
testator  makes  such  a  bequest  is  evidence  of  a  disordered  intel- 
lect and  of  testamentary  incapacity.  It  obviously  is  not.  It  is 
urged,  however,  that  the  fact  of  the  making  of  such  a  gift  is  in 
this  case,  connected  with  the  disinheriting  of  all,  or  the  greater 
part,  of  those  who  had  a  right  to  expect  to  be  the  recipients  of 
the  testator's  bounty,  and  is  therefore  indicative  of  incompetency. 
But  it  does  not  appear  that  the  testator  had  any  legitimate 
kindred.  As  before  stated,  he  never  married.  Though  a  very 
large  amount  of  testimony  was  taken  in  the  cause,  and  the  estate 


6  Stew.]  OCTOBER  TERM,  1880.  231 

Lewis's  Case. 

subjected  to  very  great  expense  in  resisting  the  claim  of  one  who 
alleged  that  she  was  his  widow,  the  claim  was  at  length  shown 
and  admitted  to  be  entirely  fraudulent,  and  the  result  of  a  crimi- 
nal conspiracy.  Although  the  opportunity  has  been  afforded  to 
prove  that  the  testator  had  legitimate  relations,  no  such  proof 
was  offered ;  and  the  omission  is  the  more  significant  because,  in 
the  outset  of  the  cause,  the  illegitimacy  of  the  testator  was 
alleged,  and  evidence  taken  to  establish  the  fact.  Though  the 
testator  called  the  contestant,  John  S.  Cathcart,  his  nephew,  and 
addressed  him  as  such  in  epistolary  correspondence  (and  perhaps 
otherwise),  he  subsequently  denied  the  relationship,  saying  that 
John  S.  Cathcart  and  his  brother  Martin  were  not  his  nephews, 
"except  by  courtesy."  That  the  testator  was  attached  to  the 
government  of  this  country,  and  sympathized  deeply  with  it  in 
the  crisis  of  the  rebellion,  there  is  ample  evidence.  He  was 
minded  to  offer  it  his  personal  service  as  a  soldier ;  and  when  he 
yielded,  as  he  readily  did,  to  the  suggestion  that  his  age  unfitted 
him  for  such  service,  he  expressed  his  determination  to  aid  the 
government  with  his  pecuniary  means,  and  he  accordingly  sub- 
scribed to  its  loans  at  a  period  when,  to  some  people,  such  action 
appeared  more  patriotic  than  prudent.  It  is  not  surprising  that, 
in  his  circumstances  and  with  his  devotion  to  the  country,  he 
should  have  been  desirous  of  offering  to  it  the  fortune  which, 
under  its  beneficent  institutions,  he  had  been  enabled,  by  his 
industry,  thrift  and  sagacity,  to  accumulate.  Such  gifts  are  the 
offspring  of  lofty  sentiments,  not  of  disordered  imaginations. 
James  Smithson  limited  his  estate  over  to  the  United  States  of 
America,  to  found  at  Washington,  under  the  name  of  the  Smith- 
sonian Institution,  an  establishment  for  the  increase  and  diffusion 
of  knowledge  among  men,  and  the  gift  was  carried  into  effect. 
A  late  distinguished  citizen  of  this  state  gave,  by  his  will,  to  the 
state  a  marine  battery  which  he  had  in  course  of  construction, 
and  directed  that  it  be  completed  at  an  expense  not  to  exceed 
$1,000,000,  out  of  his  estate,  before  it  should  be  offered  to 
the  state  for  its  acceptance.  His  testamentary  capacity  was 
never  questioned.  In  the  case  in  hand,  it  is  not  at  all  improba- 
ble that  the  enthusiasm  of  the  testator  for  the  cause  of  the  Union 


232  PREROGATIVE  COURT.  [33  Eq. 

Lewis's  Case. 

was  kindled  by  the  fact  that  the  interests  of  the  colored  race 
here  were  involved  in  the  struggle  which  arose  out  of  the  rebel- 
lion, and  that  his  gratitude  was  excited  by  the  liberation  which 
was  one  of  the  results  of  the  contest.  But  apart  from  these  con- 
siderations, obviously  no  conclusion  unfavorable  to  his  capacity 
is  to  be  drawn  from  the  fact  that  a  testator  gives  his  estate  in 
charity,  ignoring  his  collateral  relations.  It  appears,  however, 
by  the  will,  that  the  testator  was  not,  in  fact,  unmindful  of  his 
blood  relations.  He  made  such  provision  as  he  deemed  proper 
for  such  of  them  as  he  desired  to  provide  for.  He  gave  to  Mag- 
dalene J.  Johnson  $10,000,  with  a  request  that  she  would  pay 
to  her  aged  aunt,  Frances  Grace,  for  life,  $300  a  year  in  equal 
quarter-yearly  payments.  The  testator,  for  years  before  the 
making  of  the  will,  was  not  friendly  to  the  Cathcarts.  If  he 
had  no  legitimate  relations  (and  he  does  not  appear  to  have  had 
any),  those  of  the  contestants  who  claim  to  be  his  relations  could 
derive  no  advantage  from  refusing  probate  of  the  will.  If  the 
will  of  1861  made  provision  for  his  relations,  that  will  was  can- 
celed by  the  testator  in  1872.  Benson  would  be  benefited  if  pro- 
bate of  the  codicil  were  denied,  provided  probate  of  the  will 
were  granted,  but  not  otherwise.  While  the  evidence  produced 
in  opposition  to  the  will  and  codicil,  fails  to  show  that  the  testa- 
tor was  not  possessed  of  testamentary  capacity,  the  testimony  of 
numerous  witnesses  (before  adverted  to),  business  men  who  knew 
him  well  up  to  the  time  of  his  death,  and  whose  opportunities 
of  knowledge  were  excellent,  abundantly  establishes  his  com- 
petency. 

Among  those  witnesses  is  John  S.  Harberger,  president  of  the 
Manhattan  Company,  a  bank  of  the  city  of  New  York,  who  was 
acquainted  with  him  from  about  1845  up  to  the  time  of  his 
death,  and  knew  him  well.     He  says  of  him : 

"As  a  business  man,  I  have  never  met  with  a  sounder  head,  and  if  you  like, 
(judging)  from  the  care  and  caution  that  he  invariably  exercised  in  the  choice 
of  securities,  [having  regard  to]  the  price  and  the  revenue  to  be  derived  from 
them;  he  was  a  man  of  strong  attachments,  and,  I  might  say,  of  equally 
strong  antipathies  (I  believe,  in  the  course  of  my  intercourse  with  him,  I  never 
challenged  his  antipathies) ;  apparently  an  exacting  man,  yet  I  think  he  never 
aaked  me  to  do  anything  that  was  not  reasonably  just  and  proper." 


6  Stew.]  OCTOBER  TERM,  1880.  233 


Lewis's  Case. 


He  further  says  that  the  testator  was  a  man  of  very  strong 
character — one  of  the  most  marked  men  in  character  that  he 
ever  met  in  his  life  ;  of  iron  will  and  inflexible,  and  almost 
equally  inflexible  in  his  prejudices;  naturally  suspicious ;  and, 
he  adds,  he  was  prudent  to  a  fault,  except  where  his  antipathies 
sometimes  might,  for  the  moment,  disturb  his  better  judgment. 
He  also  says  that  there  was  not  a  moment  during  all  his  long 
acquaintance  with  him  in  which  he  showed  a  lack  of  under- 
standing or  any  unsoundness  of  mind.  Mr.  Harberger  was 
assistant  cashier  of  the  bank  from  1857  to  1860,  and  cashier 
from  the  latter  date  to  September,  1879,  when  he  became  presi- 
dent. As  before  stated,  his  acquaintance  with  the  testator  com- 
menced in  1845,  and  continued  up  to  the  time  of  the  death  of 
the  latter.  He  says  he  saw  a  good  deal  of  him ;  that  as  early 
as  1845,  the  testator  was  the  holder  of  New  York  city  stocks; 
that  his  transfer  office  was  that  bank,  in  which  the  witness  paid 
him  interest,  as  a  dealer  and  stockholder  of  the  bank,  for  the 
twenty-five  years  before  his  death,  and  that  the  testator  was  one 
of  the  depositors  of  the  bank  up  to  the  time  of  his  death,  and  he 
was  occasionally  a  borrower  from  the  bank ;  that  the  witness  was 
accustomed  to  deal  with  him  personally  up  to  his  death,  and  to 
talk  with  him  about  his  business  affairs,  such  as  the  nature  of 
his  investments,  the  rate  of  interest  for  money,  and  other  topics 
of  interest  to  both  of  them  at  the  time ;  that  the  testator's  in- 
vestments were  generally  of  the  best  in  the  market,  ordinarily 
those  that  paid  the  highest  rate  of  interest  and  were  most  highly 
esteemed  by  the  majority  of  investors,  and  that  the  investments 
were  selected  by  the  testator  himself.  Mr.  Harberger  was  on 
terms  of  intimate  acquaintanceship  with  him,  and  saw  and  con- 
versed with  him,  on  an  average,  at  least  twice  a  week  during  the 
last  two  years  of  the  testator's  life,  and  received  a  good  many 
letters  from  him,  and  altogether  had  an  excellent  opportunity  of 
knowing  his  mental  capacity.  It  appears  from  the  testimony 
that  in  his  business  transactions  up  to  his  death,  the  testator  ex- 
hibited no  evidence  of  unsoundness.  The  burden  of  proof  of 
incapacity  is  on  the  opponents  of  the  will.  They  have  by  no 
means  established  it.     On  the  contrary,  it  appears,  from  a  care- 


234  PREROGATIVE  COURT.  [33  Eq. 

Doremus's  Case. 

ful  review  and  consideration  of  all  the  evidence,  that  the  testa- 
tor, at  the  time  of  making  both  will  and  codicil,  was  possessed 
of  full  testamentary  capacity. 

Those  instruments  will  be  admitted  to  probate. 


Matter  of  the  estate  of  Peter  G.  Doremus,  deceased. 

An  order  of  distribution  of  an  estate  was  made  in  December,  1867.  One  dis- 
tributee was  absent,  and,  on  the  presumption  of  his  death,  his  next  of  kin  ap- 
plied for  his  share,  but  the  administrator  refused  to  pay  it  over,  and  no  com- 
pulsory proceedings  were  taken  against  him.  The  administrator  retained  the 
share  ready  for  payment  until  April,  1877,  when  he  deposited  it  in  a  savings 
bank,  where  it  drew  six  per  cent,  interest.  Shortly  afterwards,  he  withdrew  it 
and  applied  it  all  to  his  own  use.  The  distributee  appeared  in  1878,  and  in 
proceedings  against  the  administrator's  sureties — Held,  that  they  must  pay  in- 
terest on  the  share  at  six  per  cent.,  after  and  during  its  deposit,  and  at  seven 
per  cent,  (the  legal  rate)  from  the  time  of  its  withdrawal  until  July  4th,  1878, 
and  at  six  per  cent,  (the  legal  rate  from  that  time)  subsequently. 


Mr.  W.  Prall,  for  the  distributee. 

Mr.  T.  D.  Hoxsey,  for  the  sureties  of  the  administrator. 

The  Ordinary. 

Upon  an  assessment  of  the  damages  upon  an  administrator's 
bond,  the  question  is  raised  as  to  the  amount  of  interest  which 
shall  be  collected  on  an  unpaid  distributive  share  of  the  estate, 
which  is  the  only  outstanding  obligation  secured  by  the  bond. 
The  order  of  distribution  was  made  in  December  term,  1867. 
The  administrator  appears,  by  the  testimony,  to  have  kept  the 
money  for  the  share  in  question  either  in  his  own  custody  at 
home  or  on  deposit  in  bank,  ready  to  be  paid  over,  up  to  the 
time,  April  20th,  1877,  when  he  deposited  it  in  a  savings  bank 
in  Patei-son,  where  it  drew  interest,  at  the  rate  of  six  per  cent, 
per  annum.     He  drew  part  of  the  money  out  of  that  bank  No- 


6  Stew.]  OCTOBER  TERM,  1880.  235 

Tucker  v.  Tucker. 

vember  SOtli,  1877,  part  of  it  April  1st,  1878,  and  the  rest  on 
the  5th  of  that  month,  and  applied  all  of  it  to  his  own  use.  He  is 
chargeable  with  interest  from  the  time  when  he  made  the  deposit 
in  the  savings  bank,  at  six  per  cent,  per  annum,  up  to  the  time  of 
drawing  it  out;  at  seven  from  that  time  up  to  the  4th  of  July, 
1878,  and  at  six  per  cent,  from  that  date.  It  appears  that  the 
distributee  to  whom  the  share  belonged,  and  to  whom  the  ad- 
ministrator was,  by  the  order  of  the  orphans  court,  directed  to  pay 
it,  did  not  appear  until  within  the  last  two  years,  and  it  was 
alleged  by  his  next  of  kin  that  he  was  dead.  They  applied  to 
the  administrator  for  the  payment  of  the  money  to  them  as  next 
of  kin,  and  threatened  him  with  legal  proceedings  for  the  re- 
covery of  it.  He  refused  to  pay  it  over  to  them,  however,  but 
held  it  ready  to  be  paid  to  the  person  or  persons  entitled  to  it. 
No  proceedings  were  ever  taken  against  him  to  recover  the 
money  by  those  who  claimed  it  as  next  of  kin. 


EzEKiEL  I.  Tucker,  executor  of  Warner  Tucker,  deceased, 

appellant, 

V. 

UzAL  A.  Tucker  et  al.,  respondents. 

1.  An  executor  has  no  right,  without  authority  from  a  competent  court,  to 
invest  the  funds  of  the  estate  in  municipal  bonds  or  bank  stock. 

2.  Where  commissions  are  paid  on  part  of  the  estate  at  an  intermediate  ac- 
counting, commissions  can  only  be  allowed  on  the  amount  which  comes  into 
the  executor's  hands  afterwards,  and  such  commissions  are  calculated  as  if  the 
subsequent  receipts  were  part  of  the  prior  receipts. 


Appeal  from  decree  of  orphans  court  of  Union  county,  on  the 
account  of  the  appellant. 

Mr.  E.  Q.  Keasbey,  for  appellant. 
Mr.  Luther  Shafe)\  for  respondents. 


236  PREROGATIVE  COURT.  [33  Eq. 

Tucker  v.  Tucker. 

The  Ordinary. 

The  following  questions  were  presented  on  the  argument  of 
this  appeal :  Whether  certain  investments  made  by  the  executor, 
the  accountant,  of  the  money  of  the  estate  in  bonds  of  the  city 
of  Elizabeth  and  in  bank  stock,  should  be  allowed ;  whether,  if 
the  investment  in  bank  stock  be  disallowed,  he  should  have  an 
allowance  of  the  tax  paid  by  him  thereon ;  whether  he  should  be 
allowed  interest  paid  by  him  on  taxes  assessed  on  the  property 
of  the  estate,  and  whether  he  is  entitled  to  full  commissions  on 
the  whole  estate,  seeing  that  he  was  allowed  such  commissions  on 
part  of  the  estate  in  his  intermediate  account. 

The  orphans  court  disallowed  the  investments,  and,  while  it 
charged  him  with  the  dividends  which,  by  the  account,  he  ac- 
knowledged he  had  received  from  the  stock,  disallowed  the  tax 
he  had  paid  on  the  stock.  It  also  disallowed  the  interest  paid 
by  him  on  taxes  assessed  on  the  property  of  the  estate.  At  the 
close  of  his  account  the  executor  states  that  the  securities,  invest- 
ments and  assets  of  the  estate  consist  of  fifty  shares  of  bank  stock, 
eight  bonds,  of  $1,000  each,  of  the  city  of  Elizabeth,  and  certain 
real  estate,  which  was  obtained  on  an  exchange.  That  real  estate 
was  properly  specifically  accounted  for,  as  part  of  the  estate,  in 
accordance  with  the  decision  of  this  court  in  Tocher  v.  Tucker,  2 
Stew.  Eq.  ^86.  The  executor  had  no  authority  to  invest  any  part 
of  the  estate  in  either  municipal  bonds  or  bank  stock.  Accord- 
ing to  his  own  testimony,  he  did  not  consult  any  of  the  legatees 
or  devisees  on  the  subject,  nor  mention  the  matter  to  them  until 
after  the  investments  were  made.  He  bought  the  bonds  from 
the  city  comptroller  at  less  than  par — ninety-eight  cents  on  the 
dollar,  and  accrued  interest.  In  about  four  weeks  after  he 
bought  them,  all  of  the  legatees  and  devisees,  he  says,  made  com- 
plaint to  him  about  the  investment.  He  told  them  he  con- 
sidered the  bonds  good,  and  one  of  them  said  that  legal  counsel 
in  the  city  (whom  he  named)  advised  that  he  get  rid  of  them, 
but  he  refused  to  follow  the  advice  or  heed  the  complaint.  He 
had  no  authority  from  the  orphans  court  to  invest.  The  invest- 
ments in  city  bonds  and  bank  stock  cannot  be  allowed.     Neither 


6  Stew.]  OCTOBER  TERM,  1880.  237 

Tucker  v.  Tucker. 

of  them  is  an  investment  recognized  as  proper  for  trust  moneys 
in  the  absence  of  direction  by  competent  authority.  The  muui- 
cipal  bonds  in  this  case  were,  it  will  be  noticed,  bought  of  a  city 
official  and  below  par.  Objectionable  as  these  bonds  have  proved 
to  be  as  an  investment  (they  pay  no  interest,  and  now  bring  but 
forty  or  fifty  cents  on  the  dollar  in  the  market),  there  are  other 
municipal  bonds,  issued  by  competent  authority,  in  this  state, 
which  would,  perhaps,  have  been  more  so  still.  It  is  easy  to  see 
that  to  sanction  the  unauthorized  investment  of  trust  money  by 
a  trustee  in  municipal  bonds  would  be  a  most  unwise  proceeding. 
Such  investments  have  not  been  authorized  by  the  court  of  chan- 
cery in  this  state.  The  rule  on  the  subject  of  investments  of 
ti'ust  money  has  been  referred  to  in  several  cases.  In  Gray  v. 
Fox,  Sazt.  259,  and  Vreeland  v.  Vreeland,  1  C.  E.  Gh\  612,  the 
court  recognizes  only  government  stocks  and  landed  security,  and 
condemns  investments  in  stocks  of  private  companies.  In  Hoi- 
sted V.  Meeker,  3  C.  E.  Gr.  136,  and  Lathrop  v.  Smalley,  8  C. 
E.  Gr.  192,  direction  was  given  to  trustees,  and  what  were  allow- 
able investments  was  stated.  They  were  declared  to  be  securi- 
ties of  the  United  States  or  of  this  state  and  mortgages  of  real 
estate. 

By  our  statute  law  {Rev.  777  §  116),  executors,  guardians 
and  trustees  may  obtain  the  direction  of  the  orphans  court  as  to 
their  investments,  and  if  they  follow  it  the  loss  which  may  be 
sustained  will  not  fall  on  them.  The  act  does  not  limit  the 
court  as  to  securities.  It  expressly  authorizes  executors,  guard- 
ians and  trustees  to  invest  in  the  bonds  of  this  state. 

The  executor  in  this  case  left  the  taxes  on  property  of  the  estate 
unpaid,  as  he  says,  for  two,  three  and  perhaps  four  years,  and 
paid  interest  on  them  at  the  rate  of  twelve  or  fifteen  per  cent.  It 
does  not  appear  that  he  was  not  in  funds  of  the  estate  wherewith 
to  pay  them,  but  the  contrary.  The  interest  was  properly  disal- 
lowed. 

He  complains  that  the  court,  while  charging  him  with  the 
dividends  received  from  the  bank  stock  before  mentioned,  re- 
fused to  allow  him  the  amount  paid  by  him  for  tax  assessed  on 
him  for  it.     He  charges  himself  with  §225  received  for  divi- 


238  PREROGATIVE  COURT.  [33  Eq. 

Tucker  v.  Tucker. 

dends  on  the  stock  up  to  July  1st,  1878.  He  bought  it  April 
1st,  1878.  The  court,  in  restating  the  account,  appear  to  have 
charged  him  with  lawful  interest  on  the  amount  of  the  par  value 
of  the  stock,  $5,000,  up  to  the  time  of  filing  the  account,  Novem- 
ber 18th,  1878,  aud  also  with  the  amount  by  which  the  divi- 
dends above  mentioned  (up  to  July  1st,  1878),  exceeded  that  in- 
terest. But  the  executor  does  not  charge  himself  with  any 
dividends  on  the  stock  after  July  1st,  1878.  It  appears,  by  the 
restatement  of  the  account,  that  the  stock  paid  a  dividend  of 
eight  per  cent,  per  annum,  though  there  is  no  evidence  on  that 
head,  and  it  is  impossible,  from  the  record,  to  say  what  dividends 
he,  in  fact,  received  or  was  entitled  to  on  the  stock  up  to  the  filing 
of  the  account.  It  is  certain,  however,  that  he  is  not  charged 
with  dividends  after  July  1st,  1878.  It  does  not  appear,  there- 
fore, that  in  view  of  the  fact  that  the  dividends  on  the  stock 
probably  exceeded  the  legal  rate  of  interest  on  its  par  value,  the 
disallowance  of  the  tax  paid  by  him  was  unjust  to  him.  If  he 
had  been  charged  with  all  the  dividends  received,  aud  they  had 
exceeded  or  had  been  equal  to  the  legal  rate  of  interest  on  the 
par  value  of  the  stock,  for  the  year  for  which  the  tax  was  paid, 
after  deducting  the  tax,  he  should  have  been  credited  with  the 
tax.  But,  as  the  case  stauds,  the  decree  must  be  affirmed  in  this 
respect  also. 

He  claims  allowance,  upon  his  final  account,  of  full  commis- 
sions on  the  entire  estate  in  his  hands,  although  he  was  allowed 
Such  commissions  on  by  far  the  greater  part  of  it  on  the  settle- 
ment of  his  intermediate  account.  He  is  entitled  to  commissions 
only  on  the  money  which  has  come  into  his  hands  since  the  set- 
tlement of  the  intermediate  account,  and  the  commissions  on  that 
sum  are  to  be  allowed  at  the  rate  at  which  they  would  have  been 
allowed  if  it  had  constituted  part  of  the  amount  on  which  com- 
missions were  allowed  on  the  settlement  of  the  intermediate 
account. 

An  executor,  administrator,  guardian  or  trustee  is  not  entitled, 
under  the  statute,  to  commissions  more  than  once  on  the  money 
which  comes  into  his  hands,  and  if  commissions  have  been  al- 
lowed, on  an  intermediate  account,  on  part  of  the  estate,  he 


6  Stew.]  OCTOBER  TERM,  1880.  239 

Kise  V.  Heath. 

will,  on  the  final  account,  be  entitled  to  commissions  only  on  the 
balance  which  has  come  to  his  hands  since.  And  in  computing 
his  commissions  on  the  final  account,  commissions  are  to  be  reck- 
oned upon  the  whole  amount,  and  the  balance,  after  deducting 
from  those  commissions  the  commissions  allowed  on  the  inter- 
mediate account,  will  be  the  amount  to  which  he  will  be  entitled. 
The  amount  on  which  the  appellant  was  allowed  commissions  in 
the  intermediate  account  was  $23,475.  He  is  entitled  to  com- 
missions now  on  the  amount  which  has  come  to  his  hands  since, 
$4,922.98,  at  the  rate  of  two  per  cent. 

The  orphans  court  so  decreed. 

The  decree  appealed  from  will  be  affirmed,  with  costs. 


Catharine  Kise,  appellant, 

V. 

Edward  M.  Heath  et  al.,  respondents. 

The  evidence  in  this  case — Held,  to  show  testamentary  capacity  on  the  part 
of  a  testatrix  eighty-one  yeajra  old,  and  that  no  undue  influence  had  been  ex- 
erted over  her  by  her  daughter,  with  whom  she  and  her  husband  had  lived 
for  more  than  twenty-two  years,  although  such  daughter  received,  by  the  will, 
a  larger  share  of  the  estate  than  her  sisters,  and  notwithstanding  such  daughter 
and  her  husband  had  received  compensation  for  taking  care  of  testatrix's  hus- 
band, who  died  before  testatrix,  from  his  estate. 


Appeal  from  decree  of  Hunterdon  orphans  court. 

Mr.  R.  S.  Kuhl,  for  appellant. 

Mr.  0.  P.  Chamberlin  and  Mr.  H.  G.  Cliamberlin,  for  re- 
spondents. 

The  Ordinary. 

This  appeal  brings  up  for  review  the  decree  of  the  orphans 
court  of  Hunterdon  county,  admitting  to  probate  a  paper  pur- 


240  PREROGATIVE  COURT.  [33  Eq. 

Kise  V.  Heath. 

porting  to  be  the  will  of  Rebecca  Heath,  deceased,  late  of  that 
county.  The  grounds  of  objection  to  the  will  are  twofold — in- 
capacity and  undue  influence.  It  was  executed  March  5th,  1878. 
The  testatrix  was  then  about  eighty-one  years  old,  and  was  living 
with  her  daughter  Miranda,  wife  of  Francis  Rittenhouse,  with 
whom  she  and  her  husband,  Daniel  Heath  (who  died  there 
in  February,  1878),  had  lived  for  twenty-two  years.  She  had 
but  two  other  children — the  caveatrix,  Catharine,  wife  of  James 
Kise,  and  Mary,  wife  of  Reading  Housel.  Mrs.  Rittenhouse 
and  Mrs.  Housel  each  had  one  child,  and  Mrs.  Kise  was  child- 
less. The  testatrix's  husband  died  intestate,  and  his  property 
was  divided,  according  to  law,  between  his  widow  and  his  three 
children,  the  before-mentioned  daughters  of  the  testatrix. 
Shortly  after  his  death,  Mr.  and  Mrs.  Rittenhouse  removed  to 
North  Carolina.  After  their  vendue  of  their  property,  the  tes- 
tatrix went,  for  a  few  days,  to  the  house  of  Henry  F.  Bodine. 
From  there  she  went  to  the  house  of  her  son-in-law,  Reading 
Housel,  and  remained  there  until  the  fall  of  1878,  when  she  went 
to  board  at  the  house  of  her  grandson,  Samuel  Housel,  where  she 
lived  until  her  death,  which  occurred  in  September,  1879.  On 
or  about  April  1st,  1878,  the  testatrix  executed  a  letter  of 
attorney  to  Henry  F.  Bodine,  authorizing  and  empowering  him 
to  act  for  her  in  matters  of  business,  and  on  or  about  the  4th  of 
the  same  month,  she  executed  a  deed  of  trust  of  her  property, 
in  favor  of  herself,  to  Edward  M.  Heath.  She  had  an  estate  of 
about  $4,000.  By  the  will,  after  directing  that  her  debts  and 
funeral  expenses  be  paid,  she  proceeds  as  follows  : 

"  In  consideration  of  inadequate  compensation  for  board,  lodging,  washing 
and  making  extra  trouble  incident  to  the  infirmities  of  age,  for  the  last  five 
years,  for  myself  and  late  husband,  Daniel  Heath,  it  is  my  will,  and  I  do 
order,  give  and  bequeath  to  my  beloved  daughter,  Miranda  Rittenhouse,  wife 
of  Francis  Rittenhouse,  $1,000,  first  and  before  any  division  takes  place,  and 
then  she,  said  Miranda  Rittenhouse,  to  share  equal  with  my  beloved  daughter, 
Mary  Housel,  wife  of  Reading  Housel,  and  my  beloved  daughter,  Catharine 
Kise,  wife  of  James  Kise,  except  said  Catharine  Kise  to  have  only  the  use  or 
interest  of  her  share  during  her  natural  life,  and  at  her  death  her  share  to  be 
divided  equal  between  my  two  daughters,  Mary  Housel  and  Miranda  Ritten- 
house, if  they  be  living,  or  to  their  legal  representatives,  if  they,  or  either  of 
them,  be  dead." 


6  Stew.]  OCTOBER  TERM,  1880.  241 

Kise  V.  Heath. 


At  the  time  of  making  the  will,  a  claim  made  by  Mrs.  Ritten- 
house  and  her  husband  against  the  estate  of  Daniel  Heath,  for 
extra  compensation  for  the  care  of  him  and  his  wife,  the  testa- 
trix, was  under  negotiation  for  settlement  between  them  and  the 
representatives  of  the  estate,  and  it  was  compromised  by  the  pay- 
ment by  the  administrators  of  $1,200,  as  such  compensation. 
There  was  an  agreement  between  Daniel  Heath  and  the  Ritten- 
houses  for  the  payment  of  $200  a  year  for  the  board  of  himself 
and  his  wife,  and  the  $1,200  were  allowed  as  extra  compensation 
for  the  twenty- two  years  during  which  Heath  and  his  wife  had 
lived  with  the  Rittenhouses.  The  $1,200  appear  to  have  been 
paid  April  4th,  1878,  about  a  month  after  the  making  of  the 
will  in  question.  When  the  settlement  and  payment  were  made, 
the  Housels  and  Kises  were  ignorant  of  the  provision  made  in 
the  will  for  Mrs.  Rittenhouse,  as  compensation  for  the  same 
services.  The  will  was  executed  with  due  legal  formalities.  The 
testimony  on  the  subject  establishes  the  fact  that  at  the  time  when 
the  will  was  made,  the  testatrix  fully  understood  the  business  in 
which  she  was  engaged,  and  was  possessed  of  testamentary 
capacity.  She  herself  gave  the  instructions  for  the  will,  and 
after  it  had  been  prepared,  it  was  twice  read  over  to  her,  and  she 
approved  of  it.  She  herself  named  the  executors.  Of  the  wit- 
nesses to  the  will,  one,  David  Bodine,  was  intimately  acquainted 
with  her,  and  in  answer  to  the  question  whether  she  was  of  sound 
mind  when  she  executed  it,  he  says,  in  substance,  that  he  saw 
nothing  to  induce  him  to  think  that  she  was  not.  The  other, 
John  H.  Philkill,  was  asked  whether  she  was  childish  or  not, 
and  declined  to  give  an  opinion  on  that  subject.  He  was  not 
asked  whether,  in  his  opinion,  she  had  sufficient  capacity  to 
enable  her  to  make  a  will.  Two  physicians  were  sworn  on  the 
subject  of  capacity— one.  Dr.  Cramer,  on  behalf  of  the  caveatrix, 
and  the  other.  Dr.  Reiley,  on  behalf  of  the  proponents.  The 
former  testifies  that  he  attended  the  testatrix  professionally  for 
several  years  before  her  death.  He  says  that  he  was  at  Ritten- 
house's  frequently  during  the  last  two  years  that  the  testatrix 
lived  there,  and  that  he  thinks  that  what  she  said  during  those 
years  was  intelligent.     He  also  says  that  from  what  he  saw  and 

16 


242  PREROGATIVE  COURT.  [33  Eq. 

Kise  V.  Heath. 

knew  of  her  during  the  years  that  he  attended  her,  her  physical 
and  mental  condition  was  not  such  as  necessarily  to  require  some 
one  to  take  care  of  her.  Dr.  Reiley  became  acquainted  with  her 
seven  or  eight  months  before  her  death.  He  says  he  talked 
with  her  on  several  topics,  and  she  talked  very  sensibly ;  and  he 
says  that  during  the  time  he  knew  her  he  is  clearly  of  opinion 
that  she  was  competent  to  make  a  will. 

This  latter  testimony  is  important,  because  it  is  claimed  by  the 
caveatrix  that  the  alleged  incapacity  was  the  result  of  the  failure 
of  the  testatrix's  physical  and  mental  powers  by  reason  of  old 
age.     The  testimony  of  Dr.  Cramer,  before  referred  to,  bears 
directly  on  the  allegation  made  by  the  caveatrix,  that  the  testa- 
trix was  incompetent,  by  reason  of  her  physical  and  mental  im- 
becility, to  take  any  care  of  herself.     The  proof  is,  that  though 
she  had  the  physical  infirmities  usually  concomitant  upon  ad- 
vanced age,  she  retained  her  mental  capacity.     Her  memory  was 
good.     This  was  strikingly  manifested  in  the  preparations  for 
her  husband's  funeral.     She  supplied  the  names  of  persons  to  be 
invited  whom  her  daughter,  Mrs.  Rittenhouse,  had  overlooked. 
She  was  able  to  count  money  and  to  make  change.    She  frequently 
read  the  Bible,  and  was  a  faithful  attendant  at  the  church  of 
which  she  was  a  member,  and  she  appears,  from  the  evidence,  to 
have  been  ai:  attentive,  appreciative  and  critical  listener  to  the 
preaching.     She  was  of  a  taciturn  disposition,  but  when  she  spoke, 
she  spoke  with  intelligence.     I  attach  no  importance  to  the  tes- 
timony on  the  part  of  the  caveatrix  in  regard  to  the  testatrix's 
conduct  at  the  funeral  of  her  husband,  which,  it  is  urged,  is 
evidence  of  imbecility.     In  the  first  place,  it  is  met  and  over- 
thrown by  counter-testimony  on  the  part  of  the  proponents,  and 
in  the  next  place,  the  fact  that  she  gave  no  manifestation  of  grief 
on  the  occasion,  would  not,  if  such  had  been  the  fact,  be  evidence 
of  incapacity.     I  see  no  reason  to  doubt  that  she  was  pos- 
sessed of  full  testamentary  capacity.     In  this  connection,  it  may 
be  remarked  that  the  letter  of  attorney  and  deed  of  trust  were 
executed  by  her,  with  the  knowledge  of  her  family,  within  a 
month  of  the  time  when  the  will  was  made,  and  her  capacity  to 


6  Stew.]  OCTOBER  TERxM,  1880.  243 

Kise  V.  Heath. 

execute  those  instruments  seems  never  to  have  l)een  doubted  or 
questioned. 

It  is  urgedj  however,  that  there  is  evidence  that  Mrs.  Ritten- 
house,  the  principal  legatee,  exercised  undue  influence  over  her. 
The  grounds  on  which  this  claim  is  based,  are  that  the  situation 
of  the  parties  afforded  opportunity  for  such  influence,  and  that 
Mrs.  Rittenhouse,  on  the  occasion  when  the  instructions  for  the 
will  were  given,  made  use  of  an  expression  which  indicated  the 
exercise  of  it.  Mr.  Charaberliu  was  the  draughtsman  of  the  will. 
He  appears  to  have  been  sent  to  do  the  work  by  his  father,  who 
was  a  scrivener,  and  who  had  been  requested  to  draw  the  will,  but 
from  infirmity  was  disinclined  to  do  it.  He  says  his  father  com- 
municated to  him  the  fact  that  the  testatrix  wanted  to  see  him, 
or  wanted  to  make  a  will.  He  states  that  he  went  to  see  her 
accordingly;  that  he  said  to  her  that  he  understood  that  she 
wanted  to  make  her  will,  and  she  answered  that  she  did ;  that 
he  then  asked  her  how  she  wanted  it,  and  she  replied  that  she 
hardly  knew  how;  that  he  then  said  that  she  must  know — that 
he  could  not ;  that  she  made  no  immediate  answer  to  that  remark ; 
that  he  then  said  that  she  had  three  daughters,  and  asked  if  she 
wanted  to  leave  them  equal  shares  of  her  property,  and  she 
replied,  "Why,  yes — I  guess  so;"  that  just  then  Mrs.  Ritten- 
house came  in  and  said  to  her :  "  There  is  no  use  in  your  making 
a  will;"  and  after  makiug  that  remark,  went  out  of  the  room, 
and  then  the  testatrix  proceeded,  and  told  him  what  disposition 
she  desired  to  make  of  her  property,  which  he  says  was  just  what 
the  will,  as  executed,  provided  for.  He  adds  that  he  asked  her 
whom  she  wanted  for  executor,  and  she  said  she  had  not  thought 
about  that.  She  subsequently,  when  the  draft  of  the  will  was 
approved  by  her,  named  the  executors,  as  before  stated.  The 
caveatrix  insists  that  the  above-mentioned  remark  of  Mrs.  Ritten- 
house is  evidence  of  undue  influence.  It  does  not  appear,  how- 
ever, that  the  latter  had  any  par^  in  the  makiug  of  the  will.  She 
was  not  present  when  the  instructions  for  it  were  given,  though 
they  were  given  at  her  house.  She  was  not  present  when  the 
draft  of  the  will  was  read  over  by  the  draughtsman  to  the  testatrix. 
He  says  no  one  was  present  except  himself  and  the  testatrix. 


244  PREROGATIVE  COURT.  [33  Eq. 

Kise  V.  Heath. 

She  was  not  present  when  the  will  was  executed.  Mr.  Chamber- 
lin  gives  the  following  account  of  the  testatrix's  instructions  for 
the  will :  She  said  that  she  and  her  husband  had,  on  account  of 
their  sickness,  been  a  great  deal  of  trouble  to  Miranda;  that 
Miranda  had  to  have  extra  help  about  the  house,  and  to  have 
strangers  there  to  watch  with  her,  the  testatrix's,  husband  in  his 
sickness,  and  she  wanted  her  paid  for  it;  that  she  wanted  her  to 
have  the  first  $1,000  before  any  division  took  place,  and  then  to 
share  equally  with  the  others,  and  that  Katy  (Mrs.  Kise,  the 
caveatrix)  was  to  have  only  the  use  of  her  share.  He  says  that 
he  said  to  her  that  he  supposed  she  meant  the  interest,  and  she 
said  "  yes."  He  says  he  thinks  she  said  she  did  not  want  Mrs. 
Rise's  husband  to  have  it  when  Mrs.  Kise  was  done  with  it,  but 
wanted  Mary  (Mrs.  Housel)  and  Miranda  (Mrs.  Rittenhouse)  to 
have  it.  The  will  having  been  executed  with  due  formalities, 
and  the  testatrix  having  been,  at  the  time  of  executing  it,  of  com- 
petent understanding,  the  burden  of  proof  of  undue  influence  is 
on  the  caveatrix.  And  undue  influence  must  be  proved.  As  was 
said  in  Humphrey's  Will,  11  C.  E.  Gi\  513,  it  is  not  a  presump- 
tion, but  a  conclusion.  See  also  Boyse  v.  Rossborough,  6  H.  of 
L.  Cas.  2.  There  does  not  appear  to  have  been  any  undue 
influence  when  the  draft  of  the  will  was  read  and  approved,  or 
when  the  will  was  executed.  Giving  to  the  remark  made  by 
Mrs.  Rittenhouse  its  fullest  effect,  it  was  a  suggestion  pertinent 
to  the  reply  of  the  testatrix  to  the  question  of  the  scrivener 
whether  she  wanted  to  leave  her  property  to  her  three  daughters 
in  equal  shares,  or  how  she  would  leave  it,  she  answered  "  Yes ; 
I  guess  so."  But,  as  before  stated,  it  appears  that  she  had 
previously,  in  the  same  conversation,  told  the  scrivener  that  she 
hardly  knew  how  she  wanted  to  leave  her  property,  and  her 
reply  was  merely  indicative  of  her  concurrence  in  his  suggestion, 
so  far  as  her  general  intention  was  concerned,  that  her  daughters 
were  to  have  her  property ;  but  it  did  not  indicate  her  full  inten- 
tion on  the  subject.  She  subsequently  gave  him  her  reason  for 
the  gift  of  $1,000  to  Mrs.  Rittenhouse.  It  was  a  recognition  of, 
and  compensation  for,  faithful  services  and  kind  attention  ren- 
dered to  her  and  her  husband  for  over  twenty  years  in  their  old 


6  Stew.]  OCTOBER  TERM,  1880.  245 

Kise  V.  Heath. 

age.  It  is  quite  probable  that  she  intended  to  give  to  the  daughter 
who  had  thus  discharged  her  filial  duty  towards  her  parents,  a 
substantial  reward  out  of  her  own  estate,  irrespective  of  what  her 
daughter's  husband  might  obtain  for  the  same  services  out  of  the 
estate  of  her  father,  the  testatrix's  husband.  Nor  is  it  at  all  sur- 
prising that  the  testatrix,  in  the  distribution  of  her  property, 
made  a  marked  discrimination  in  favor  of  the  daughter  with 
whom  she  and  her  husband  had  passed  more  than  a  score  of 
years  of  their  old  age,  and  under  whose  roof  they  had  found  a 
comfortable  home,  and  to  whose  filial  piety  they  had  been  so 
much  indebted. 

The  scrivener  says  that  he  saw  nothing  to  indicate  incapacity 
during  the  interview  in  which  the  remark  of  Mrs.  Rittenhouse 
was  made,  and  that  he  is  of  opinion  that  the  remark  did  not  in- 
fluence the  testatrix  in  the  disposition  of  her  property. 

The  testatrix  lived  for  about  eighteen  months  after  the  $1,200 
were  paid,  and  it  appears  that  she  had  testamentary  capacity  up 
to  the  time  of  her  death ;  yet  she  never  intimated  any  dissatis- 
faction with  the  will  she  had  made,  nor  indicated  any  desire  to 
alter  it.  It  is  proved  that  she  was  liberal  in  the  use  of  her 
money,  and  that  she  insisted  on  her  right  to  do  what  she  pleased 
with  it.  Reading  Housel,  called  for  the  caveatrix,  says  that  one 
night  while  she  was  at  his  house,  (she  appears  to  have  been  there 
from  April  to  October,  1878),  his  wife  (her  daughter  Mary), 
referring  to  the  gift  by  the  testatrix  of  the  sum  of  twenty-five 
cents  to  the  witness's  daughter,  said  to  the  testatrix  that  she 
ought  not  to  be  giving  her  money  away,  and  he  says  the  testatrix 
seemed  to  be  affronted,  and  said  that  her  money  was  her  own, 
and  she  had  a  right  to  do  what  she  pleased  with  it.  There  is  no 
evidence,  whatever,  that  the  testatrix  was  not,  in  making  the 
will,  a  perfectly  free  agent;  none  that  her  judgment,  discretion 
or  wish  was  overborne  by  Mrs.  Rittenhouse,  or  thnt  she  was 
acting  under  any  restraint.  In  other  words,  there  is  no  evidence 
that  the  will  was  not  her  own.  On  the  other  hand,  it  appears 
that  she  acted  of  her  own  volition,  and  without  restraint.  The 
decree  of  the  orphans'  court  will  be  affirmed;  the  costs  of 
appeal  to  be  paid  by  the  appellants. 


246  PREROGATIVE  COURT.  [33  Eq. 


Lothrop's  Case. 


In  the  matter  of  the  application  for  grant  of  letters  of  limited 
administration  upon  the  estate  of  Jeremiah  Lothrop 
and  others. 

A  mortgagee  is  entitled  to  a  grant  of  letters  of  limited  administration  on  the 
estate  of  a  deceased  subsequent  mortgagee  of  the  same  premises,  who  was  a  non- 
resident, no  administration  having  been  taken  out  here  on  his  estate,  but  such 
administration  will  be  limited  to  the  proceedings  already  taken,  or  that  may 
hereafter  be  taken  in  the  pending  foreclosure,  or  in  any  other  supplementary 
proceedings  for  relief  on  the  mortgage. 


Mr.  J.  R.  Emery,  for  the  application. 

The  Ordinary. 

The  petitioner,  who  is  the  complainant  in  a  suit  in  chancery 
of  this  state,  for  the  foreclosure  and  sale  of  certain  mortgaged 
premises,  applies  for  the  grant  of  letters  of  limited  administration 
on  the  estate  of  Jeremiah  Lothrop,  the  mortgagee  named  in  a 
mortgage  of  the  property  subsequent  to  that  of  the  petitioner, 
and  John  Balch  and  Mary  B.  Doyle,  two  of  Lothrop's  cestuis 
que  trust,  he  beiug  a  mere  trustee.  They  are  all  three  dead.  At 
their  death  they  were  all  non-residents,  and  no  grant  of  admin- 
istration of  their  estates  has  been  made  in  this  state.  Lothrop 
died  in  1875,  and  the  other  two  in  1871.  On  the  estate  of 
Lothrop,  administration  was  granted  in  New  York,  and  Balch 
left  a  will  which  was  proved  in  New  York,  but  no  administra- 
tion has  been  granted  in  this  state  on  the  estate  of  either.  Mary 
Doyle  died  intestate,  and  no  administration  of  her  estate  has  been 
taken  anywhere.  The  administrator  of  Lothrop  and  the  executor 
of  Balch  were  made  parties  to  the  suit  in  chancery  and  were 
proceeded  against  as  absent  defendants,  but  neither  of  them 
appeared. 

The  necessity  for  the  existence  of  the  power  of  creating  such  a 
representation  as  is  now  applied  for  in  such  cases  as  this,  is 
obvious.  Unless  such  power  exist,  a  failure  of  justice  will  ensue. 
The  petitioner  cannot  safely  proceed  with  her  suit  to  foreclose  her 
mortgage  in  the  absence  of  the  representatives  of  the  deceased 


6  Stew.]  OCTOBER  TERM,  1880.  247 

Lothrop's  Case. 

trustee  and  cestuis  que  trust,  and  she  is  unwilling  and  ought  not 
to  be  required  to  furnish  general  administrators  for  the  estates. 
Of  the  power  of  this  court  to  grant  the  letters,  I  have  no  doubt. 
In  England  such  letters  are  granted  by  the  ecclesiastical  court. 
1  Williams  on  Exrs.  6^2,  522.  The  powers  of  this  court  in  grant- 
ing letters  of  administration  are  not  special  or  limited,  but  full 
and  general.  Coursen's  Will,  3  Gr.  Ch.  JfiS.  In  England  such 
letters  as  are  now  applied  for  are  granted  to  a  nominee  of  the 
applicant,  and  they  are  limited  to  the  purposes  of  the  suit.  Goote 
on  Probate  122.  By  statute  {15  &  16  Vict.  c.  86  §  U),  the  court 
of  chancery  in  England  is  authorized  to  appoint  an  administrator 
ad  litem,  where  necessary  from  want  of  a  representative,  or  to 
proceed  in  the  suit  without  representation.  We  have  no  such 
law.  The  letters  will  be  granted.  They  will  be  limited  to  the 
purpose  only  of  attending,  supplying,  substantiating  and  confirm- 
ing the  proceedings  already  had  or  which  shall  or  may  hereafter 
be  had  in  the  suit  in  the  court  of  chancery,  or  in  any  other  suit 
or  suits  which  may  hereafter  be  commenced  in  that  or  any  other 
court  for  the  relief  sought  by  the  bill  in  the  suit  in  chancery,  and 
until  a  final  decree  shall  be  made  therein,  and  such  decree  be 
carried  into  execution,  and  the  execution  thereof  fully  com- 
pleted, but  no  further  or  otherwise,  in  any  manner  whatever. 
The  administrator  ad  prosequendum  thus  appointed  will  have  no 
authority  to  receive  any  money  realized  on  the  mortgage  which 
he  represents,  or  the  decree  or  execution. 

Note. — If  the  administration  granted  be  more  limited  than  the  purposes  of 
the  suit  require,  and  it  is  in  the  plaintiflf's  power  to  obtain  a  more  general 
administration,  the  court  may  require  him  to  do  so  {Faulkner  v.  Daniel,  3  Hare 
199;  Johnscm  v.  Hodgens,  Ir.  L.  E.  {10  Eq.)  525;  Davis  v.  Chanter,  2  Phil. 
545). 

In  a  suit  to  recover  titles  of  a  number  of  tenants  and  occupiers,  one  of  the 
defendants  had  died,  and  there  was  no  legal  representative  of  him. — Hdd, 
til  at  his  widow  might  be  appointed  for  that  purpose,  so  far  as  the  suit  went 
(Ely  V.  Gayford,  16  Beav.  561). 

On  a  general  creditor's  bill  by  the  representative  of  a  mortgagee,  on  behalf 
of  himself  and  other  creditors  who  may  come  in,  an  administrator  ad  litem  is 
insufficient  [Oroves  v.  Lane,  16  Jur.  854,  1061;  see  Despard  v.  Head,  2  Moll, 
SS9). 

Pending  the  administration  of  an  estate  in  England,  a  legatee  domiciled  in 


248  PREROGATIVE  COURT.  [33  Eq. 

Lothrop's  Case. 

Nova  Scotia,  died  there,  and  his  will  was  proved  there,  but  the  executors 
declined  to  prove  in  England. — Held,  that  the  court  could  appoint  an  admin- 
istrator to  represent  him  in  England,  for  the  purpose  of  reviving  the  suit 
(Bliss  V.  Putnam,  29  Beav.  20). 

F.,  a  testator,  died,  having  appointed  three  executors ;  two  renounced,  and 
the  third,  after  taking  probate,  died  intestate.  All  the  residuary  legatees 
renounced,  and  administration  de  bonis  non  was  granted  to  K.,  a  creditor.  K. 
died,  leaving  personalty  of  F.  unadministered.  At  the  time  of  F.'s  death,  pro- 
ceedings against  him  for  the  misappropriation  of  part  of  tlie  funds  were  pend- 
ing, and  administration  to  represent  K.  in  those  proceedings  was  granted 
(Bay  v.  Thompson,  3  Sw.  &  Tr.  169;  also  Grant's  Case,  L.  R.  (2  P.  Div.)  435). 

A  party  not  heard  from  for  more  than  seven  years,  was,  if  deceased,  entitled 
to  a  share  of  a  residuary  estate,  which  had  been  paid  into  the  court  of  chancery. 
He  had  no  other  property  in  England. — Held,  that  general  administration 
would  not  be  granted,  but  one  limited  to  the  proceedings  in  chancery  to  obtain 
such  share  [Turnei^s  Case,  3  Sw.  &  Tr.  4-'^6). 

A  wife  died  in  France,  leaving  personal  estate  there,  but  none  in  England ; 
and  it  was  alleged  that,  by  the  law  of  France,  her  husband,  from  whom  she  had 
eloped,  could  not  establish  his  claim  to  her  property  there,  without  a  grant 
from  the  English  court. — Held,  that  the  court  had  no  jurisdiction  to  make  such 
grant  [Tucker's  Case,  3  Sw.  &  Tr.  585). 

In  a  suit  instituted  in  chancery  to  administer  on  an  estate,  an  amount  was 
found  due  to  the  executors  of  a  surviving  trustee,  and  those  executors  appointed 
three  persons  attorneys  to  collect  and  receive  such  amount. — Held,  that  while 
they  were  not  creditors  so  as  to  entitle  them  to  general  administration,  they 
had  such  an  interest  as  authorized  the  court  to  appoint  their  nominee  as  limited 
administrator  (Frampton's  Case,  9  Jur.  [N.  S.)  755). 

Pending  a  bill  for  relief  against  several  directors  of  a  corporation,  for  an 
allied  breach  of  trust,  one  of  them  died,  leaving,  as  appeared,  a  will,  appoint- 
ing his  widow  executrix ;  but  she  had  not  seen  the  will,  and  did  not  know  its 
contents,  nor  had  his  solicitors  of  record  been  instructed  since  hia  death. — 
Hdd,  that  the  court  would,  on  the  plaintiff's  application,  appoint  a  person, 
consenting  to  act,  to  represent  such  defendant  in  the  suit,  unless  the  solicitors 
or  widow  should  appear,  after  notice,  and  elect  to  represent  the  decedent's 
interest  {Joint  Stock  Co.  v.  Brown,  L.  R.  {8  Eq.)  376). 

After  a  decree  for  an  account  had  been  rendered  against  two  trustees,  one  of 
them  died  intestate,  and,  as  was  alleged,  insolvent. — Hdd,  that  no  limited 
administration  need  be  taken  out  on  such  estate  {Moore  v.  Morris,  L.  R.  {3 
Eq.)  139). 

A  tenant  for  life  died  after  obtaining  a  decree  for  arrears  of  income  due  to 
him.  He  left  a  will,  but  liis  executor  died  without  having  proved  it. — Held, 
that  the  court  could,  on  the  application  of  one  of  the  defendants,  revive  the 
suit  as  against  the  other  defendants,  without  any  representative  of  the  tenant 
for  life,  but  without  prejudice  to  any  subsequent  intervention  by  such  repre- 
sentative {Haffward  v.  Pile,  L.  R.  {7  Ch.)  634). 

There  can  be  no  general  account  or  administration  of  an  estate,  on  the 


6  Stew.]  OCTOBER  TERM,  1880.  249 

Lothrop's  Case. 

application  of  a  limited  administration  ( Oroft  v.  Waterton,  IS  Sim.  652) ;  nor 
can  such  administrator  represent  any  other  interest  of  the  estate  in  the  litiga- 
tion (Moores  v.  Choat,  8  Sim.  508 ;  Hodgem  v.  Hodg&ns,  Ir.  L.  R.  {10  Eq.)  4; 
Case  V.  Cork,  2  Y.  &  C.  ISO  ;  EUvx  v.  Goodson,  2  Coll.  4;  Clough  v.  Dixon,  10 
Sim.  564). 

On  the  hearing  of  a  petition  relating  to  the  disposition  of  a  trust  fund,  it 
appeared  that  A.,  had  an  interest  in  it  which  might  be  asserted.  A.  died  in 
the  United  States,  having  appointed  as  his  executor  B.,  who  proved  the  will 
there,  but  not  in  England.  Counsel  appeared  for  B.  at  the  hearing. — Held, 
that  the  court  had  power  to  appoint  such  counsel  to  represent  B.'s  interest 
{Hewiston  v.  Todhunter,  15  E.  L.  &  Eq.  S56). 

The  death  of  a  married  woman  had  been  caused  by  negligence,  and  her 
husband,  a  mariner,  was  abroad  and  not  expected  to  return  within  the  time 
limited  for  bringing  an  action  to  recover  damages,  whereupon  letters  limited 
to  bringing  such  action  were  granted  to  decedent's  mother  ( William^ s  Case, 
SI  L.  J.  P.  40;  see  IVLinois  Cent.  B.  B.  v.  Oragin,  71  lU.  177;  Jeff.  B.  B.  v. 
Swayne,  26  Ind.  477). 

The  grant  can  only  be  made  where  the  litigation  is  pending  {Oordon'e  Case, 
Ir.  L.  B.  (1  Eq.  179) ;  and  not  for  an  amount  exceeding  the  applicant's  claim 
[Fleming's  Case,  S  Ir.  Jur.  (N.  S.)  89). 

In  Tennessee,  the  county  courts  may  grant  administration  limited  to  a  sin- 
gle act,  such  as  the  revival  and  prosecution  of  a  judgment  recovered  by  the 
decedent  {McNairy  v.  Bdl,  6  Terg.  302). 

A  native  of  Texas,  having  no  other  property  in  Tennessee,  instituted  a  suit 
there  against  his  brother  and  others,  and  pending  such  suit  died. — Held,  that 
the  court  had  authority  to  appoint  a  third  person  to  carry  on  the  suit  against 
the  wishes  of  such  brother,  and  that  such  appointment  did  not,  in  a  proper 
case,  prevent  the  granting  of  general  administration  (Jordan  v.  Polfc,  1  Sneed 
4S0;  also  Vaughan's  Case,  Ir.  L.  B.  {10  Eg.)  1 ;  Bobinson  v.  Bell,  1  De  G.  &  Sm. 
6S0,  See,  also,  Alexander  v.  Barfield,  6  Tex.  400 ;  Tarborough  v.  Sarris,  S 
Deo.  40;  Smiley  v.  Bell,  Mart.  &  Terg.  S78 ;  Code  of  Ala.  §  2625  ;  BuseeU  v. 
Umphlett,  27  Ark.  SS9  ;  Ewing  v.  Moses,  50  Ga.  264;  Ellis  v.  Deane,  Beat.  15; 
Samdera  v.  Dunman,  L.  B.  {11  P.  Div.)  825),—'B,^x. 


250  PREROGATIVE  COURT.  [33  Eq. 


Poulson  V.  The  National  Bank  of  Frenchtown. 


WrLLiAM  J.  Poulson  et  al.,  appellants, 


The  National.  Bank  of  Frenchtown  et  al.,  respondents. 

1.  After  the  Removal  of  administrators  and  the  appointment  of  another  in 
their  stead,  a  creditor  of  the  estate  may  file  exceptions  to  their  account  aa 
well  as  the  new  administrator. 

2.  The  orphans  court  has  power  to  determine  whether  exceptants  are  cred- 
itors, and,  as  such,  interested  in  the  settlement  of  the  estate. 


Appeal  from  order  of  Hunterdon  orphans  court. 

Mr.  J.  G.  Shipman,  for  appellants. 

3Ir.  J.  R.  Bulloch,  Mr.  J.  T.  Bird,  Mr.  J.  N.  Voorhees  and 
Mr.  W.  M.  Davis,  for  respondents. 

The  Ordinary. 

The  appellants  are  administrators  of  Samuel  B.  Hudnit,  de- 
ceased. They  were,  by  the  order  of  the  orphans  court  of  Hun- 
terdon county,  removed  from  office,  and  Edward  P.  Conkling 
appointed  in  their  stead.  They  filed  their  account,  and  the 
respondents,  as  creditors  of  the  intestate,  filed  exceptions  to  it. 
Mr.  Conkling  filed  none.  The  counsel  of  the  appellants  moved 
the  court  to  strike  out  the  exceptions,  on  the  ground  that  they 
were  filed  by  persons  who  did  not  appear  to  have  any  right  to 
except.  He  insisted  that  the  new  administrator  alone  had  that 
right,  and,  besides,  if  creditors  had  a  riglit  to  except,  that  it  did 
not  appear  that  the  exceptants  were,  in  fact,  creditors. 

The  question  presented  is,  whether  the  creditors  of,  or  other 
persons  interested  in  an  estate  may  file  exceptions  to  the  account 
of  a  removed  or  discharged  executor  or  administrator ;  or  whether 
the  privilege  of  exception  is  confined  to  the  newly-appointed  ad- 
ministrator. The  one  hundred  and  twenty-ninth  section  of  the 
orphans  court  act  provides  that  the  new  administrator  shall  have 


6  Stew.]  OCTOBER  TERM,  1880.  251 

Poulson  V.  The  National  Bank  of  Frenchtown. 

power  and  authority  to  demand,  receive  and  recover  the  prop- 
erty and  assets  of  the  estate,  and  to  maintain  all  proper  actions, 
at  law  or  in  equity,  for  the  recovery  thereof,  and  shall  be  author- 
ized to  do  all  acts  necessary  for  the  administration  and  settlement 
of  the  estate.  The  next  section  provides  that  the  discharged  or 
removed  executor  or  administrator  shall  forthwith  deliver  over 
to  the  new  one,  his  successor,  all  the  property  and  assets  which 
he  may  hold,  and  shall,  at  the  next  terra  of  the  court,  state  and 
settle  his  account,  and  pay  the  balance  shown  to  be  due  to  his 
successor,  according  to  the  order  of  the  court ;  and  that,  on  his 
failure  to  do  so,  the  court  may  enforce  the  performance  of  the 
order  by  fine,  for  the  benefit  of  the  estate,  to  be  collected  by  exe- 
cution against  the  goods,  chattels  and  lands  of  the  delinquent,  or 
the  payment  of  the  fine  may  be  enforced  by  attachment  for  con- 
tempt. The  next  section  provides  that  the  new  administrator 
may  have  actions  of  trover,  detinue  or  in  case  for  such  goods  and 
chattels  as  shall  have  come  to  the  possession  of  the  discharged  or 
removed  executor  or  administrator,  and  for  any  breach  of  trust, 
waste,  embezzlement  or  misappropriation  thereof,  and  may  pro- 
ceed, by  action  at  law  or  suit  in  equity,  for  the  recovery  of  the 
assets,  either  against  the  discharged  or  removed  executor  or  ad- 
ministrator, or  any  other  person  into  whose  possession  the  assets 
may  have  come  or  shall  be. 

The  right  of  any  person  interested  in  the  estate  to  except  to 
the  account  of  an  executor  or  administrator  is  recognized  by 
the  one  hundred  and  fifth  section  of  the  act.  The  question  is, 
whether  such  right  is  taken  away  by  the  other  provisions  above 
stated,  for  the  obtaining  or  recovery  of  the  estate  from  a  dis- 
charged or  removed  executor  or  administrator.  The  right  of  a 
cestui  que  trust  to  except  or  object  to  the  account  of  his  trustee  is 
a  very  obvious  one,  and  one  of  which  he  cannot  be  deprived. 
The  right  to  an  account  necessarily  and  manifestly  implies  the 
right  of  objection  to  the  account.  The  undoubted  right  of 
those  who  are  interested  in  an  estate  to  object  to  the  account 
of  the  persons  by  whom  it  is  administered  cannot  be  taken  away 
from  them,  and  the  legislature  has  not  attempted  to  do  so. 
Instead  of  attempting  to  deprive  them  of  existing  rights,  it  has 


252  PREROGATIVE  COURT.  [33  Eq. 


Poulson  V.  The  National  Bank  of  Frenchtown. 


sought  to  give  them  new  and  additional  protection  ;  and  though 
it  is  the  duty  of  the  new  administrator  to  object  to  the  account 
of  the  discharged  or  removed  executor  or  administrator,  and  he 
is  the  representative  of  those  interested  in  the  estate,  for  that  pur- 
pose as  well  as  others,  the  fact  that  it  is  his  duty  does  not  deprive 
them  of  their  right  to  except  also.  He  may  have  but  little  or 
no  knowledge  of  the  estate,  and  therefore  may  not  be  able  to 
make  the  objections  that  should  be  made.  He  may  not  be  able 
to  make  any  where  many  ought  to  be  made.  And  if  he  were  to 
make  objections  under  information  from  those  whom  he  repre- 
sents, he  might  not  be  able  to  litigate  them,  while  they  could. 
The  fact  that  a  new  trustee  has  been  appointed  in  the  place  of 
one  removed,  could  not  take  away  the  right  of  the  cestui  que  trust 
to  object  to  the  account  of  the  latter.  The  argument  ah  inconve- 
nie7iti,  urged  in  the  present  case,  has  no  foundation.  It  would 
apply  equally  to  the  right  to  except  to  any  account  of  a  trust  in 
favor  of  a  number  of  cestuis  que  trust  or  to  the  right  to  except  to 
the  account  of  any  executor  or  administrator,  guardian  or  trustee, 
where  the  persons  interested  and  who  have  a  right  to  object 
are  many.  Practically,  however  numerous  the  exceptions,  the 
litigation  is  within  the  control  of  the  court,  and  it  will  so 
conduct  it  as  to  prevent  it  from  being  oppressive  or  vexatious. 
In  the  case  of  the  account  of  a  discharged  or  removed  executor 
or  administrator,  guardian  or  trustee,  all  the  persons  interested 
in  the  estate,  including  the  new  appointee,  have  the  right 
i6  except.  The  case  of  McDonald  v.  (y  Connelly  10  Vr.  S18, 
is  not  in  contrariety  to  this  conclusion.  It  was  there  held 
that  on  the  removal,  by  the  orphans  court,  of  an  executor  or 
administrator  who  has  wasted  the  estate,  the  right  of  redress  for 
the  devastavit  passes  to  his  successor  in  office,  and  cannot  be  ex- 
ercised by  creditors.  The  object  of  exception  to  the  account 
merely  is  to  ascertain  what  is  due  from  the  accounting  executor 
or  administrator,  and  what  he  should  be  required  to  pay  or  de- 
liver over ;  and  when  that  has  been  ascertained  it  is  the  duty  of 
the  new  administrator  to  receive  or  recover  it.  The  right  to 
except  to  the  account  does  not  necessarily  involve  the  right  to  re- 
ceive or  recover  the  amount  which  may  be  adjudged  to  be  due. 


6  Stew.]  OCTOBER  TERM,  1880.  253 

Mallett  V.  Bamber. 

The  objection  that  the  respondents  did  not  appear  to  be  cred- 
itors, and  therefore  did  not  appear  to  be  interested  in  the  estate, 
cannot  be  maintained.  It  was  without  the  power  of  the  court  to 
determine  whether  the  exceptants  were  to  be  regarded  as  being 
interested  in  the  estate  as  creditors,  or  not.  An  administrator  or 
executor  may  be  removed  before  any  claim  against  the  estate  has 
been  proved,  and  it  is  competent  for  the  court  to  determine,  in 
such  case,  whether  one  who  excepts  to  his  account,  as  a  creditor 
of  the  estate,  is  interested  in  the  estate,  as  such,  or  not,  as  it  may 
whether  one  who  excepts  in  any  other  right  has  such  right  or 
not. 

The  order  of  the  orphans  court  will  be  affirmed,  with  costs. 


Eliza  Mallett  et  aJ.,  appellants, 

V. 

Isaac  Bamber,  respondent. 

Although  the  allowance  of  the  coBts,  expenses  and  counsel  fees  of  the  cavea- 
tors against  the  probate  of  a  will  is,  by  statute,  discretionary  with  the  court, 
yet,  when  there  exist  no  reasonable  grounds  for  contesting  such  probate,  or  the 
litigation  is  needlessly  protracted  and  expensive,  such  allowance  should  be 
denied. 


Appeal  from  decree  of  Passaic  orphans  court. 
Mr.  C.  L.  Oorbin,  for  appellants. 
Mr.  S.  TutUe,  for  respondent. 

The  Oedinary. 

The  orphans  court  of  Passaic  county,  by  its  decree,  after  liti- 
gation before  it,  admitted  to  probate  a  paper  purporting  to  be 
the  will  of  Mary  Hampson,  deceased ;  and,  adjudging  that  the 
caveators  had  reasonable  cause  for  opposing  the  will,  directed 


254  PREROGATIVE  COURT.  [33  Eq. 

Mallett  V.  Bamber. 

that  the  costs  aud  expenses  of  the  litigation,  and  a  counsel-fee  of 
$200  to  the  counsel  of  each  side,  be  paid  out  of  the  estate. 
From  so  much  of  the  decree  as  awards  costs,  expenses  and  coun- 
sel-fees to  the  caveators,  the  proponents  appealed  to  this  court. 
The  printed  book  of  the  evidence  contains  over  three  hundred 
pages.  The  testimony  was  taken  by  question  and  answer.  The 
questions  are  more  than  twenty-six  hundred  in  number.  A 
great  part  of  the  testimony  is  utterly  irrelevant.  The  caveators 
were  Isaac  Bamber,  a  brother,  and  William  L.  Bamber,  a 
nephew  of  the  testatrix.  She  was  a  widow,  and  had  no  chil- 
dren. By  her  will,  she  gave  to  her  brother  Peter,  in  England, 
$2  a  week  for  life ;  to  two  of  her  nieces,  daughters  of  her  sister, 
Eliza  Mallett,  $150  each  ;  to  Edward  A.  Absom,  an  adopted  son 
of  Mrs.  Mallet,  $100,  to  be  paid  to  him  when  of  age;  to  her 
niece,  Elizabeth  Bridge,  $300 ;  to  her  niece,  Leah  Bridge,  sister 
of  Elizabeth,  $200,  and  directed  that  a  note  of  $160,  given  to 
her  by  James  and  Catharine  Bridge  (the  latter  was  her  sister), 
be  given  up  to  them  at  her  decease.  To  the  Ladies'  Protestant 
Hospital  of  Paterson  she  gave  $100,  if  such  hospital  should 
exist  at  the  time  of  her  death,  and  to  the  Ladies'  Protestant 
Orphan  Asylum  of  Paterson,  $100,  and  gave  all  the  rest  of  her 
estate  to  Mrs.  Mallett.  The  will  was  contested  on  the  ground 
of  incapacity  and  undue  influence,  the  influence  being  imputed 
to  Mrs.  Mallett.  The  court  very  justly  adjudged  that  neither 
ground  of  objection  was  maintained.  The  award  of  costs  to 
caveators  in  such  cases  is  left  to  the  discretion  of  the  court,  but 
it  is  a  discretion  which  should  be  carefully  exercised ;  and  while, 
on  the  one  hand,  due  examination  and  scrutiny  into  the  circum- 
stances of  the  making  of  a  will  are  not  to  be  discouraged,  con- 
tests not  undertaken  in  good  faith,  or,  if  entered  upon  bona  fide, 
conducted  in  such  a  manner  as  to  occasion  needless  expense,  are 
in  no  wise  to  be  encouraged.  The  estate,  in  this  instance,  is  not 
large ;  but  whether  the  estate  be  large  or  small,  the  principles 
and  the  rule  are  the  same.  A  very  careful  examination  and 
consideration  of  the  testimony  leads  me  to  the  conclusion  that 
there  was  no  reasonable  ground  for  the  belief  on  the  part  of  the 
caveators  that  the  testatrix  was  incompetent  to  make  a  will,  or 


6  Stew.]  OCTOBER  TERM,  1880.  255 

Mallett  V.  Bamber. 

that  it  was  the  result  of  undue  influence  on  the  part  of  Mrs. 
Mallett.  They  knew  that  the  testatrix  was  not  well  disposed 
towards  them,  on  account  of  her  resentment  of  their  treatment 
of  her,  and  they  had  no  reason,  under  the  circumstances,  to  ex- 
pect that  she  would  give  them  any  part  of  her  estate,  by  any 
testamentary  disposition  she  might  make.  It  is  proved  that 
Joaac  Bamber,  in  the  winter  previous  to  the  spring  in  which  the 
will  was  made,  urged  Mrs.  Mallett  to  get  the  testatrix  to  make  a 
will,  giving  him  the  same  amount  which  she  would  give  to  Mrs. 
Mallett,  and  threatened  to  make  trouble  by  contesting  the  will, 
on  the  ground  of  undue  influence,  if  she  did  not  do  so. 
He  had  grievously  affronted  the  testatrix.  She  had  gone  to 
his  house  to  pay  a  short  visit,  and  she  did  not  find  the  family 
at  home.  She  stayed  over  Sunday,  however,  and  while  there 
entered  into  familiar  conversation  with  their  servant,  garru- 
lously giving  to  her  an  account  of  her  own  life,  which  had  been 
humble  and  laborious,  and  making  also  some  unpleasant  but 
true  statements  of  like  character  in  regard  to  Isaac  and  his 
family.  He  was  very  much  offended  with  this,  and  scolded  her 
severely  for  it.  William  L.  Bamber  also  had  offended  her.  He 
had,  as  she  said,  called  her  "  an  old  hag."  He  denies  it,  saying 
that  what  he  said  was  that,  on  a  certain  occasion,  she  acted  like 
a  crazy  old  hag.  He  says  he  did  not  say  so  to  her,  but  to  Isaac, 
who  told  her  of  it.  Between  her  and  Mrs.  Mallett  there  were 
very  close  sisterly  relations.  She  confided  in  the  latter  fully, 
and  there  is  no  evidence  that,  in  any  instance,  her  confidence  was 
abused,  but,  on  the  other  hand,  Mrs.  Mallett  appears  to  have 
been  careful  for  her  welfare,  both  as  to  her  personal  comfort  and 
her  pecuniary  affairs.  That  the  confidence  which  the  testatrix 
reposed  in  Mrs.  Mallett  was  carried  to  an  unbusiness-like  extent, 
even  to  leaving  in  the  possession  of  the  latter,  for  safe  keeping  with 
her  other  papers,  the  evidence  of  indebtedness  of  Mrs.  Mallett 
to  her,  was  not  evidence  of  want  of  testamentary  capacity  or  of 
undue  influence,  but  simply  of  trust  in  her  integrity  and  fidelity. 
It  appears  from  his  own  testimony,  that  Isaac  Bamber  did  not 
contemplate  opposing  the  will,  and  was  disinclined  to  do  so  (he 
says  because  he  did  not  think  it  worth  the  trouble),  but  was 
finally  persuaded,  and,  yielding  to  the  urgency  of  others,  joined 


256  PREROGATIVE  COURT.  [33  Eq. 

McGill  V.  O'Connell. 

in  the  caveat.  The  litigation  was  not  warranted,  and  if  it  had 
been,  the  extent  to  which  it  was  carried,  in  the  amount  of  utterly 
irrelevant  testimony  with  which  the  record  abounds,  would,  of 
itself,  be  sufficient  ground  for  denying  the  caveators  payment  of 
their  costs  and  counsel-fees  out  of  the  estate.  Wintermute's  Will, 
12  a  E.  Ch\  W" ;  S.  C.  on  appeal,  1  Stew.  Eq.  ^37;  Pernne  v. 
Applegaie,  1  McCart.  531;  Collins  v.  Townley,  6  C.  E.  Gr.  S6S. 
The  part  of  the  decree  appealed  from  will  be  reversed,  but 
without  costs. 


MiCJHAEL  McGiLL  et  al.,  administrators,  appellants, 

V. 

Mary  J.  O'Connell,  respondent. 

A  guardian  was  held  liable  for  the  amount  of  a  promissory  note  given  bj 
him  to  his  ward's  mother,  and  after  her  death  taken  into  his  own  custody 
ostensibly  for  safe  keeping,  such  note  being  found  after  his  death  among  his 
efifects,  with  his  signature  torn  off,  and  also  for  the  proceeds  of  sale  of  certain 
furniture,  which  also  belonged  to  the  ward's  mother,  and  was  sold  at  auction  bj 
him  ;  and  it  was  held  to  be  no  defence  that  no  administration  of  the  mother's 
estate  was  ever  taken  out ;  both  the  note  and  the  furniture  having  been  taken 
by  the  guardian,  as  such,  into  his  possession. 


On  appeal  from  decree  of  Passaic  orphans  court  allowing  ex- 
ceptions to,  and  surcharging  the  final  account  of,  Felix  McKenna, 
deceased,  as  guardian  of  Mary  J.  O'Connell. 

Mr.  Wame  Smyth,  for  appellants. 

Mr.  J.  W,  Griggs,  for  respondent. 

The  Ordinary. 

Felix  McKenna,  now  deceased,  was,  in  1874,  appointed 
guardian  of  Mary  J.  O'Connell,  then  and  still  a  minor.  He 
died  intestate,  and  his  administrators  filed  their  account  of  his 
guardianship.  The  infant,  by  her  next  friend,  her  sister,  filed 
exceptions  thereto,  claiming  that  it  should  be  surcharged  with 
half  of  the  amount  of  the  proceeds  of  the  sale  of  the  household 


6  Stew.]  OCTOBER  TERM,  1880.  257 

McGill  V.  O'Connell. 

furniture  which  their  mother,  Bridget  O'Connell,  who  lived  and 
died  in  Paterson,  owned  and  had  in  possession  at  her  death,  and 
which  was  taken  bjMr.  McKenna  into  his  possession  and  sold,  and 
half  of  the  amount,  with  interest,  of  a  promissory  note  for  $600 
made  by  McKenna,  dated  June  1st,  1870,  and  payable  one  year 
after  date,  to  the  order  of  Bridget  O'Connell,  without  defalcation 
or  discount,  with  interest  at  seven  per  cent.  The  note  was  given 
by  him  to  their  mother,  and  held  by  her  up  to  within  a  short 
time  before  her  death,  when  she  handed  it  to  her  daughter 
Annie,  bidding  her  take  care  of  it.  The  guardian  requested 
Annie,  a  few  days  after  her  mother's  death,  to  give  it  to  him, 
saying  that  he  thought  he  could  take  better  care  of  it  than  she 
could,  and  that  he  would  put  it  in  his  safe.  It  was  then  unmu- 
tilated  and  entire.  It  was  found,  after  his  death,  in  his  safe, 
with  his  signature  torn  off.  The  orphans  court  allowed  both 
exceptions  (though  as  to  the  amount,  not  to  the  extent  claimed), 
and  surcharged  the  account  accordingly.  The  cause  is  submitted 
on  the  briefs  of  counsel. 

No  objection  was  made,  either  below  or  here,  to  the  compe- 
tency of  the  testimony  adduced.  The  principal  witness  was 
Annie.  She  was  a  competent  witness  for  the  exceptant.  It  ap- 
pears, from  her  testimony,  that  her  mother,  who  was  a  widow, 
died  in  1874,  intestate,  and  that  no  administration  of  her  estate 
was  ever  granted.  The  guardian  took  into  his  possession,  as 
guardian,  as  she  says,  the  household  furniture  of  her  mother, 
and,  as  not  only  appears  by  her  testimony,  but  by  that  of  the 
auctioneer  whom  he  employed  to  sell  it,  sold  it,  and  realized 
from  the  sale  $142.50,  as  net  proceeds,  which  were  paid  to  him 
by  the  auctioneer.  The  note  was  given  by  Annie  to  the  guardian 
under  the  circumstances  before  stated.  The  presumjition,  from 
the  fact  that  it  was  found  in  his  possession  at  his  death,  with  his 
signature  torn  off,  is  that  the  signature  was  torn  off  by  him,  and, 
under  the  circumstances,  such  tearing  off  of  the  signature  is  an 
admission  of  the  genuineness  of  the  note  and  his  liability  to  pay 
it.  The  case,  on  this  point,  is  within  the  principles  of  the  maxim, 
omnia  prcesumuntur  contra  spoUatorem.  McKenna,  therefore,  was 
chargeable  with  the  amount  of  the  note  and  interest. 

17 


258  PREROGATIVE  COURT.  [33  Eq. 


Ellison  V.  Lindsley. 


But  it  is  urged  (and  this  is  the  principal  point  discussed  in  the 
briefs  of  counsel),  that  the  title  to  the  note  and  furniture  was 
never  in  the  wards,  but,  on  the  death  of  their  mother,  was  in 
abeyance,  awaiting  the  appointment  of  a  lawful  representative 
or  successor — an  administrator.  In  the  first  place,  the  guardian 
took  the  furniture  into  his  possession  as  guardian  (such  is  the 
evidence),  and  sold  it  as  the  property  of  his  wards  ;  and  he  took 
the  note  out  of  the  possession  of  one  of  his  wards,. to  whom  her 
mother  delivered  it  with  an  injunction  to  take  care  of  it.  By 
law,  the  lawful  successor  of  a  decedent  holds  the  title  to  his 
cliattles,  in  trust,  first,  for  the  payment  of  his  debts,  and  then 
for  his  legatees,  if  disposed  of  by  will,  or,  if  not,  for  those  en- 
titled thereto  under  the  statute  of  distributions.  Smith's  Law  of 
Real  and  Pers.  Prop.  323.  In  the  case  in  hand,  the  children 
were  the  equitable  owners  of  the  chattels  in  question,  subject  to 
the  claims  of  creditors,  if  any ;  and  it  does  not  appear  that  there 
were  any  creditors.  Their  guardian  having  taken  into  his  pos- 
session, as  their  property,  the  chattels  to  which  they  had  such 
equitable  title,  could  not  shield  himself  from  accounting  to  them, 
therefore,  on  the  mere  ground  that  they  had  no  legal  title,  but, 
under  the  circumstances,  would  have  been  estopped,  for  the  most 
obvious  reasons  of  justice,  from  denying  their  title. 

The  decree  of  the  orphans  court  in  reference  to  the  proceeds 
of  the  sale  of  the  furniture  is  correct,  but  as  to  the  note,  is  far 
too  little ;  but  it  has  not  been  appealed  from  by  the  exceptant, 
and  it  will  be  affirmed,  with  costs. 


John  B.  Ellison  et  al.,  appellants, 


iREN-ffiUS  H.  Lindsley,  assignee  &c.,  respondent. 

1.  The  time  limited  for  creditors  to  file  their  claims  with  an  asisgnee,  under 
an  assignment  for  the  benefit  of  creditors,  expired  on  the  8th  day  of  January. 
On  that  day,  the  appellant,  a  creditor  residing  in  PMladelphia,  discovered 
that  fact,  although,  by  misreading  his  own  entry,  he  had  previously  supposed 


6  Stew.]  OCTOBER  TERM,  1880.  259 

Ellison  V.  Lindsloy. 

the  18th  of  January  was  the  last  day.  He  thereupon  forwarded  his  claim  to 
the  assignee,  at  Newark,  by  mail,  which  ought  to  have  been  delivered  at  five 
o'clock  in  the  afternoon,  but  was  not,  in  fact,  delivered  until  the  next  day. 
Hdd,  that  such  claim  was  neither  "  presented"  nor  "  exhibited"  to  the  assignee, 
within  the  terms  of  the  statute,  within  the  time  limited. 

2.  The  orphans  court  has  no  power  to  relieve  such  creditor  on  the  ground 
that  his  omission  to  file  his  claim  in  due  time  arose  from  his  mistake,  and  not 
from  mere  negligence. 


Appeal  from  decree  of  Essex  orphans  court.  On  state  of  the 
case  and  briefs  of  counsel. 

3£r.  F.  S.  Fish,  for  appellants. 
31)'.  J.  E.  Howell,  for  respondent. 

The  Oedinary. 

The  time  within  which  the  claims  of  creditors  of  Herbert  G. 
Hoole,  a  debtor  who  had  assigned  his  property  under  our  assign- 

NoTE. — A  notice  of  amercement  must  be  served  personally  on  a  sheriff,  and 
not  sent  by  mail  {Anon.,  1  Hal.  159).  Proof  of  putting  into  the  post-office  a 
letter  containing  a  notice,  is  not  sufficient  proof  of  service  {Anon.,  6  Hal.  94; 
Hudson  V.  Henry,  1  Caines  66  ;  Hickey's  Case,  I.  R.  {10  Eq.)  117  ;  see  Futcher 
V.  Hinder,  1  F.&  F.  S57).  Where  a  plea  was  sent  by  mail  in  time,  a  judgment 
of  default  for  want  of  its  having  been  received,  was  opened  {Ludlow  v.  Hey- 
eraft,  2  Caines  386;  Cole  ads.  Stafford,  Cole  &  Caines  Cas.  110;  Stafford  v.  Cole, 
1  Johns.  Cas.  413) ;  so,  where  the  plea  was  received  by  the  plaintiff's  attorney, 
who,  on  inspection,  refused  to  take  it  from  the  post-office  {Clark  v.  McFarland, 
10  Wend.  635).  Notice  of  trial  may  be  served  by  post,  unless  its  receipt  be 
denied  {McCourry  v.  Suydam,  5  Hal.  S45) ;  and  notice  to  substitute  another 
solicitor  {Draper  v.  Holland,  3  Edw.  Ch.  272) ;  and  notice  to  give  security  for 
costs  {Abbot  V.  Ledden,  Bert.  {N.  B.)  33).  Willful  refusal  to  take  from  the 
post-office  a  letter  containing  process  is  not  service  thereof  {Bedpaih  v.  Williams, 
3  Bing.  443.  Contra,  Aldred  v.  Hicks,  3  Taunt.  186).  Delivery  of  process 
sealed  up  in  a  letter,  in  the  absence  of  the  person  to  whom  it  is  addressed,  is 
only  service  from  the  time  when  such  letter  is  opened  {Arrowsmith  v.  Engle,  3 
Taunt.  234).  Service  of  notice  to  quit,  sent  by  mail  by  a  landlord  to  his  tenant, 
is  invalid  {Papillon  v.  Brunton,  5  H.  &  N.  518;  see  May  v.  Rice,  108  Mass.  150). 

Query — Whether  depositions  taken  under  a  foreign  commission  may  be  re- 
turned by  mail  {Simms  v.  Henderson,  11  Q.  B.  1014). 

The  officer  is  not  bound  to  take  from  the  post-office  a  letter  containing  pro- 
cess, on  which  the  postage  is  unpaid.  {Hart  v.  Weatherley,  4  Howl.  P.  C.  171; 
Anon.,  1  Hill  217 ;  Brass  v.  Nicholson,  1  How.  Pr.  158). 

That  a  capias  in  another  suit  and  a  notice  of  amercement  were  mailed  to- 


260  PREROGATIVE  COURT.  [33  Eq. 

Ellison  V.  Lindsley. 

nient  act,  were,  bv  law,  to  be  put  in  to  entitle  the  holders  to  a 
dividend,  expired  on  the  8th  of  Jannary.  The  appellants  were 
creditors,  and  intended  to  file  their  claim  within  the  limited 
period,  but  being  under  a  mistake,  up  to  the  8th,  as  to  the  time 
when  it  ended  (they  supposed  it  expired  on  the  18th  instead  of 
the  8th),  they  delayed  filing  it  until  the  8th,  on  which  day  they 
discovered  their  mistake.  On  that  day  they  mailed  their  claim, 
at  Philadelphia,  to  the  assignee,  at  Newark,  in  time  to  reach  the 
latter  place  so  as  to  be  delivered  by  the  letter-carrier  to  the  as- 
signee at  about  five  P.  M.  of  that  day.  It  was  not,  in  fact,  de- 
livered to  him  until  the  next  day.  It  does  not  appear  that  it 
reached  Newark  before  the  9th.  On  excej^tion  to  it  by  the  as- 
signee, the  orphans  court  rejected  it  as  not  filed  in  time,  and 
hence  this  appeal.  The  only  question  presented  for  decision  is, 
whether  such  posting  of  the  claim  was  a  "  presenting  "  (the  term 
used  in  the  third  section  of  the  act)  or  "  exhibiting  "  (the  term 
employed  in  the  twentieth  section)  of  the  claim  within  the  limited 

gether,  in  one  envelope,  to  a  sheriff,  more  than  ten  days  before  the  beginning 
of  the  term,  and  the  capias  duly  served  and  returned,  is  not  stiflBcient  proof 
that  the  sheriff  received  the  notice  more  than  ten  days  before  the  beginning  of 
the  term  {Melvin  v.  Purdy,  2  Harr.  162) ;  although  sufficient  as  to  their  receipt, 
[Smith  V.  Campbell,  6  Bowl.  P.  C.  728). 

Notice  of  an  allotment  of  shares  sent  by  mail  to  a  stockholder,  and  never 
received,  is  good.  (Harris's  Case,  L.  R.  (7  Ch.)  587;  TownsencPs  Case,  L.  R. 
(IS  Eq.)  148;  Walts's  Case,  L.  R.  (15  Eq.)  18;  but  see  Reidpath's  Ca^e,  L.  R. 
(11  Eq.)  86;  British  Co.  v.  Colson,  L.  R.  (6  Exch.)  108). 

Whether  the  person  to  whom  a  letter  is  directed,  after  satisfactory  proof  of 
mailing  it,  ever  received  it,  is  a  question  for  the  jury  (Stair  v.  Torrey,  2  Zah. 
1^0;  President  v.  Hart,  S  Bay  491;  Greenfield  Bank  v.  Q-afts,  4  Allen  447; 
Tanner  v.  Huf,hes,  53  Pa.  St.  289  ;   Warren  v.  Warren,  1  C.  M.  &  R.  250). 

As  to  the  presumption  from  the  senders,  usual  course  of  business,  see  Heth- 
lington  v.  Kemp,  4  Camp.  193;  Skilbeek  v.  Garhett,  7  Q.  B.  846;  Ward  v.  Loud- 
eshorough,  12  C.  B.  252 ;  Spencer  v.  Thompson,  6  Ir.  C.  L.  537. 

Whether  the  postmaster  could  be  held  responsible,  see  Whitfield  v.  Be-fpen- 
cer,  Cowp.  754  ;  Hordem  v.  Ballon,  1  C.  &  P.  181 ;  Ford  v.  Parker,  4  Ohio  St. 
576;  Sawyer  v.  Corse,  17  Gratt.  230;  Fitzgerald  v.  BurrUl,  106  Mass.  446; 
Keenan  v.  Southworth,  110  Mass.  474,  and  cases  cited;  Foster  v.  Melts,  55  3/i«. 
77;  Contoell  v.  Voorliee-s  13  Ohio  523;  Hutchins  v.  Brackett,  22  K  H.  252; 
2  Thomp.  on  Neg.  819,  898. 

Notice  sent  by  mail  to  South  Carolina,  during  the  rebellion,  was  held  invalid 
(Harden  v.  Boyce,  59  Barb.  425  ;  Todd  v.  Neal,  49  Ala.  2G6 ;  Bonegan  v.  Wood,  Id. 


6  Stew.]  OCTOBER  TERM,  1880.  261 

Ellison  V.  Lindsley. 

period,  within  the  meaning  of  tlie  act.  It  certainly  cannot  be 
held  to  be  so.  If  mailing  the  claim  in  time  to  reach  the  assignee 
by  due  course  of  mail,  if  no  delay  should  occur,  were  to  be  held 
to  be  equivalent  to  presenting  or  exhibiting  the  claim,  though  it 
should  not  reach  the  assignee,  it  would,  of  course,  be  so  on  any 
other  day  than  the  last  day  of  the  limited  period  as  well  as  on  that 
day.  The  statute  imposes  on  the  assignee  the  duty  of  filing  a 
true  list  of  all  the  creditors  of  the  assignor,  as  shall  claim  to  be 
such,  and  requires  that  he  do  so  at  the  expiration  of  three  months 
from  the  date  of  the  assignment.  Bev.  37  §  5.  And  to  that  end 
the  creditors  are  to  present  their  claims  under  oath  or  affirma- 
tion. Hev.  37  §  3.  If  they  fail  so  to  exhibit  their  claims  within 
the  time  limited  by  the  act,  their  claims  will  be  barred  of  a  divi- 
dend unless  the  estate  shall  prove  sufficient,  after  the  debts  ex- 
hibited and  allowed  are  fully  satisfied,  or  they  shall  find  some 
other  estate  not  accounted  for  by  the  assignee,  before  distribution, 
in  which  case  they  shall  be  entitled  to  a  ratable  proportion  there- 

2Ji2;  McQuulchj  V.  Ware,  20  Wall.  U;  BopJcirk  v.  Page,  2  Brock.  20;  Citizen^ 
Bank  v.  Pugh,  19  La.  Ann.  J^S ;  Shaw  v.  Xeal,  Id.  156 ;  Lapeyre  v.  Robertson, 
20  La.  Ann.  399). 

Where  a  substituted  service  of  process,  &c.,  by  mail,  is  authorized  by  statute, 
a  strict  compliance  therewith  must  be  shown  [Rogers  v.  Rogeis,  3  C.  E.  Gr. 
445;  Tate  v.  Tate,  11  C.  E.  Gr.  56 ;  Gaffney  v.  Bigelaw,  2  Abb.  iV.  C.  311,  and 
note;  1  Dan.  Gh.  Pr.  435;  Jacobs  v.  Hooker,  1  Barb.  71;  Anon.,  25  Wend.  677; 
Chataque  Bank  v.  Risley,  6  Hill  375 ;  People  v.  Alameda  Co.,  SO  Gal.  182  ; 
Gray  v.  Palmer,  9  Cai.  616 ;  Sharp  v.  Dangney,  33  Gal.  505 ;  Wallace  v.  Wal- 
lace, 13  Wis.  224;  Ritten  v.  Griffith,  16  Hun  454;  Foley  v.  Connelly,  9  Iowa 
240;  Clark  v.  Adams,  33  Mich.  159;   Wilson  v.  Basket,  47  Miss.  637). 

As  to  mistakes  or  omissions  in  the  name  or  address,  see  Walter  v.  Haynes, 
By.  &  Moo.  149  ;  Gordon  v.  Strange,  1  Exch.  477 ;  Oothotit  v.  Rhinelander,  10 
How.  Pr.460 ;  Smith  v.  Smith,  4  Greene  (Iowa)  266;  Leonard  v.  New  York  Bay 
Co.,  1  Slew.  Eq.  192;  Likens  v.  McCormick,  39  Wis.  313  ;  Scorpion  Co.  v.  3Iar- 
sano,  10  Xev.  370. 

Such  service  is  effected,  generally,  only  from  the  time  when  tlie  notice  is 
received  (J/oy  v.  Rice,  lOS  Mass.  150  ;  Reg.  v.  Leonimstn;  2  B.  &  S.  391;  Reg.  ' 
V.  Slawstone,  IS  Q.B.  3SS ;  Colvillv.  Lewis,  2  C.  B.  60;  Reg.  v.  Richmond,  E.  B. 
<&  E.  253;  Slevens  v.  Wheeler,  43  Wis.  91;  Schenck  v.  2IcKie,  4  How.  Pr.  245; 
Peebles  v.  Rogers,  5  How.  Pr.  208  ;  Crittenden  v.  Crittenden,  Id.  310  ;  Morris  v. 
Morange,  17  Abb.  Pr.  86  ;  see,  however,  Radcliffv.  Van  Beiithuysm,  SHow.Pr. 
67;  Van  Home  Y.  Montgomery,  5  How.  Pr.23S;  Elliott  v.  Kennedy,  26  How. 
Pr.  422;  Schuhardt  v.  Roth,  10  Abb.  Pr.  m3).— Eep. 


262  PREROGATIVE  COURT.  [33  Eq. 


Mount  V.  Van  Xess. 


from.  Section  SO.  A  claim  sent  by  mail  may,  of  coarse,  never 
reach  the  assignee.  The  creditor  who  has  recourse  to  that  method 
of  transmitting  his  claim  takes  the  risk  of  its  reaching  its  desti- 
nation in  due  time.  The  assignee  is  to  know  who  are  the  cred- 
itors who  make  claim  as  such  by  their  act  in  presenting  or  exhibit- 
ing their  claims  within  the  prescribed  period. 

It  is  urged,  in  this  case,  that  the  failure  to  present  the  claim  at 
an  earlier  day  was  due  to  a  mere  mistake  on  the  part  of  the  appel- 
lants, and  that  that  fact  entitles  them  to  a  consideration  which  they 
could  not  claim  if  they  were  guilty  of  negligence.  The  alleged 
mistake  was  wholly  their  own.  It  arose  from  misreading  the  entry, 
in  their  own  book,  of  the  time  when  the  limitation  would  expire. 
The  orphans  court  has  no  power  to  relieve  the  appellants  from 
the  consequences  of  their  mistake.  The  language  of  the  statute 
is  clear,  and  the  court  was  not  at  liberty  to  extend  it  by  construc- 
tion. Proprietors  of  Morris  Aqueduct  Co.  ads.  Jones,  7  Vr.  206; 
Stelle  V.  Conover,  3  Stew.  Eq.  6Ifi.  In  this  connection  it  may 
be  added,  though  it  has  no  bearing  on  the  conclusion  reached, 
that  the  appellants  had  time  enough,  after  they  discovered  their 
mistake,  to  present  their  claim  to  the  assignee ;  their  error  was 
in  trusting  to  the  mail  rather  than  to  send  a  messeno-er. 

The  decree  of  the  orphans  court  will  be  affirmed,  with  costs. 


Joseph  S.  Mount,  administrator,  appellant, 


George  Van  Ness,  respondent. 

An  ancestor  bought  certain  lands,  and,  by  his  deed,  assumed  to  pay  a  mort- 
gage thereon,  and  its  amount  was  allowed  to  him  as  so  much  of  the  purchase- 
money.  Hdd,  that  this  was  not  such  personal  assumption  of  the  mortgage  as 
entitled  the  heir,  to  whom  the  premises  descended,  to  exoneration  out  of  the 
personal  estate  for  the  amount  of  the  mortgage. 


Appeal  from  decree  of  Mercer  orphans  court.     On  state  of 
the  case. 


6  Stew.]  OCTOBER  TERM,  1880.  263 

Mount  V.  Van  Ness. 
Messrs.  A.  G.  Rickey  and  G.  D.  W.  Vroom,  for  appellants. 
Mr.  James  Wilson,  for  respondent. 

The  Ordinary. 

The  question  presented  for  adjudication  is  whether  the  heir  at 
law  is  entitled  to  exoneration  out  of  the  personal  estate  for  the 
amount  of  the  mortgage  on  the  laud  descended,  subject  to  which 
the  ancestor  bought  it,  and  which  he  assumed  in  the  deed  to  him 
to  pay,  and  the  amount  whereof  was  allowed  to  him  as  so  much 
of  the  purchase-money.  The  orphans'  court  held  that  it  was  not, 
and  hence  the  appeal.  I  consider  myself  bound,  in  deciding  this 
question,  by  the  decision  in  McLenahan  v.  McLenahan,  3  C.  E. 
Gr.  101,  which  was  followed  in  Campbell  v.  Campbell,  3  Stew.  Eq. 
4-15.  In  the  former  case  it  was  held  that  if  land  descends,  or  is 
devised,  subject  to  a  mortgage  debt  not  created  by  the  decedent, 
the  heir  or  devisee  takes  the  property  cum  onere,  and  is  not  enti- 
tled to  have  the  debt  paid  out  of  the  personal  estate,  unless  the 
decedent  has  directly  assumed  the  debt,  intending  to  make  it  a 
charge  on  his  personal  estate,  or  shall  have  so  expressly  directed 
by  the  will ;  and  that  it  is  not  enough  that  he  has  assumed  to 
pay  the  debt,  or  has  rendered  himself  liable  to  be  called  on 
directly  by  the  creditor  to  pay  it.  It  is  urged,  however,  that  the 
decision  in  that  case,  so  far  as  it  seems  to  govern  this,  is  a  mere 
obite)'  dictum;  or,  if  not,  is  based  on  a  different  state  of  facts; 
that  it  does  not  appear  there,  as  it  does  here,  that  the  decedent 
assumed  the  payment  of  the  mortgage  debt.  It  did  appear  that 
the  amount  of  the  mortgage  was  retained  by  him  out  of  the  pur- 
chase-money, and  therefore  that  his  personal  estate  had  had  the 
benefit  of  it ;  that  is,  that  his  personal  estate  was  so  much  more 
than  it  would  have  been  had  the  whole  of  the  purchase-money 
been  paid.  It  also  appears,  by  the  report,  that  application  was 
made  on  the  hearing  for  leave  to  amend  the  bill  by  adding  an 
allegation  that  the  decedent,  at  the  time  of  the  conveyance  to 
him,  verbally  promised  his  grantor  to  pay  the  debt.  Such  an 
assumption  would  have  been  valid,  and  might  have  been  enforced. 
£zlles  V.  Beach,  2  Zab.  680;   Wilson  v.  King,  8  C.  E.  Gr.  150. 


264  PREROGATIVE  COURT.  [33  Eq. 


Mount  V.  Van  Ness. 


But  the  chancellor  said  that  the  proposed  amendment  would  not 
affect  the  result.     His  mind  was  drawn  to  the  very  question 
before  me,  and  he  was  dealing  with  an  application  (not  denied, 
but  for  the  sake  of  the  argument  and  decision  admitted)  to  infuse 
into  the  case  the  very  ingredient  which  is  said  to  distinguish  it 
from  that  under  consideration.     It  was,  therefore,  necessary  to 
the  adjudication  upon  the  rights  of  the  parties  before  him,  to 
consider  the  case  as  if  it  possessed  that  element.     The  weight  of 
authority  is  in  accordance  with  that  decision.     In  order  to  an 
exoneration  of  the  land  by  throwing  the  burden  on  the  personal 
estate,  it  must  appear  that  the  decedent  has  not  only  made  him- 
self answerable  for  the  payment  of  the  mortgage,  but  has  directly 
and  absolutely  made  the  debt  his  own,  or  has  in  some  other  way 
manifested  an  intention  to  throw  the  burden  on  the  personalty 
in  ease  of  the  laud.     And  this  doctrine  is  based  on  principle. 
In  Owmherland  v.  Codrington,  3  Johns.  Ch.  229,  Chancellor  Kent, 
after  reviewing  the  English  cases  on  the  subject,  says :     "  The 
series  of  cases  which  I  have  thus  examined,  shows  very  conclusively 
that  by  the  English  equity  system,  as  it  has  been  declared  and 
received  for  the  last  thirty  or  forty  years,  the  purchase  of  the 
equity  of  redemption,  with  a  covenant  of  indemnity  to  the  mort- 
gagor against  the  mortgage  debt,  did  not  make  the  debt  the 
grantee's  own,  so  as  to  render  his  personal  assets  the  primary 
fund  to  pay  it.     The  cases  all  agree  that  no  covenant  with  the 
mortgagor  is  sufficient  for  that  purpose.     There  must  be  a  direct 
communication  and  contract  with  the  mortgagee,  and  even  that 
is  not  enough  unless  the  dealing  with  the  mortgagee  be  of  such 
a  nature  as  to  afford  decided  evidence  of  an  intention  to  shift  the 
primary  obligation  from  the  real  to  the  personal  fund."     Again, 
he  says :     "  When  a  man  gives  a  bond  and  mortgage  for  a  debt 
of  his  own  contracting,  the  mortgage  is  understood  to  be  merely 
a  collateral  security  for  the  personal  obligation.     But  when  a 
man  purchases,  or  has  devised  to  him  land  with  an  encumbrance 
on  it,  he  becomes  a  debtor  only  in  respect  to  the  land  ;  and  if  he 
promises  to  pay  it,  it  is  a  promise  rather  on  account  of  the  land, 
which  continues,  notwithstanding,  in  many  cases,  to  be  the  pri- 
mary fund.     The  same  equity  which  in  other  cases  makes  the 


6  Stew.]  OCTOBER  TERM,  1880.  265 

Mount  V.  Van  Ness. 

personal  estate  contribute  to  ease  the  laud  as  between  the  real 
and  personal  representatives,  will  here  make  the  land  relieve  the 
personal  estate.  There  is  good  sense  and  justice  in  the  principle, 
aud  I  feel  the  force  of  the  doctrine  that  it  requires  very  strong 
and  decided  proof  of  intention  to  shift  the  natural  course  and 
order  of  obligation  between  the  two  estates."  The  question  is 
not  whether  the  decedent  assumed  to  pay  the  mortgage,  and  so 
made  himself  liable  therefor,  as  between  him  and  his  grantor, 
but  whether  he,  by  direct  action,  made  himself  liable,  in  his  per- 
sonal estate,  to  the  mortgagee ;  that  is,  as  between  him  and  the 
mortgagee,  expressly  made  the  debt  his  own  debt. 

The  mere  assumption  to  pay  the  mortgage  on  the  land,  if  made 
by  the  grantee  to  the  grantor,  is  at  most  an  indemnity  merely; 
and  though,  if  the  grantor  be  personally  liable  for  the  payment  of 
the  mortgage,  the  mortgagee  may,  in  equity,  pursue  the  grantee  on 
his  assumption,  that,  however,  is  because,  and  only  because,  the 
mortgagee  is,  in  equity,  entitled  to  the  benefit  of  all  collateral 
securities  which  his  debtor  has  taken  for  the  mortgage  debt. 
Klapicorth  v.  Dressier,  2  Beas.  62 ;  Norwood  v.  De  Har-t,  S 
Stew.  Eg.  413  ;  Crowell  v.  Hosp.  of  St.  Barnabas,  12  C.  E.  Gr.  650. 
And  if  the  grantor  is  not  personally  liable  for  the  mortgage  debt, 
the  mortgagee  cannot  look  to  the  grantee,  personally,  at  all ; 
because  the  assumption  is  but  an  indemnity,  and  the  grantor  not 
being  liable,  the  indemnity,  is  practically  a  mere  nullity.  Crow- 
ell V.  Hosp.  of  St.  BarnabaSy  ubi  sup. ;  Nonoood  v.  De  Hart, 
ubi  sup. ;  King  v.  Whitely,  10  Paige  4-65  ;  Trotter  v.  Hughes,  12 
N.  Y.  74'.  Nor  does  the  fact  that  the  grantee  obtained  the  benefit 
of  the  mortgage  by  having  the  amount  allowed  to  him  as  part 
of  the  purchase-money,  make  any  difference.  The  purchase- 
money  was  payable  to  his  grantor,  and  the  assumption  is  to  him, 
and  in  his  favor.  The  fact  of  the  allowance  to  the  grantee 
of  the  amount  of  the  mortgage  as  part  of  the  purchase- 
money,  merely  raises  in  equity,  an  obligation  on  his  con- 
science to  indemnify  his  grantor.  Tichenor  v.  Dodd,  S  Gr. 
Ch.  454.  In  that  case,  the  suit  was  by  the  grantor,  who  was  the 
obligor  in  the  bond  secured  by  the  mortgage,  and  who  had  been 
compelled  to  pay  deficiency  against  his  grantee.     The  property 


266  PREROGATIVE  COURT.  [33  Eq. 

Mount  V.  Van  Ness. 

■was  conveyed  to  the  latter,  subject  to  the  mortgage,  the  amount 
being  allowed  to  him  as  part  of  the  consideration  of  the  convey- 
ance. Obviously,  the  fact  that  the  mortgagee  may,  in  equity, 
avail  himself  of  the  assumption  for  the  payment  of  his  debt, 
does  not  make  the  assumption  any  more  than  a  mere  indemnity. 
It  is  on  the  ground  that  it  is  an  indemnity  that  the  mortgagee 
claims  the  benefit  of  it.  "  It  is  immaterial,"  says  Mr.  Jarman, 
"  whether  the  covenant  with  the  vendor  be  to  pay  the  debt,  or 
indemnify  him  against  it.  But  if  the  mortgagee  be  a  party  to 
the  transaction,  the  vendee  covenanting  with  him  to  pay  the 
debt,  and  the  estate  be  subjected  to  a  fresh  proviso  for  redemp- 
tion, it  will  be  considered,  with  respect  to  the  purchaser's  repre- 
sentatives, as  a  purchase  of  the  whole  estate,  and  not  of  the  equity 
of  redemption,  merely ;  and  the  same  principle,  of  course,  applies 
where,  upon  the  purchase,  the  mortgage  is  transferred  to  a  new 
mortgagee,  who  advances  a  further  sum  of  money."  2  Jarm.  on 
WUk  559,  560  ;  see,  also,  Ram  on  Assets  44-^}  4-^-^-  "  Where  a 
person,"  says  Judge  Story,  "  becomes  entitled  to  an  estate,  subject 
to  a  charge,  aud  then  covenants  to  pay  it,  the  charge  still  remains 
primarily  on  the  real  estate,  and  the  covenant  is  only  a  collateral 
security,  because  the  debt  is  not  the  original  debt  of  the  cov- 
enantor." 2  Story's  Eq.  Jur.  §  124.8  ;  see,  also,  §§  124B  a,  1248 
b,  124.8  c.  In  McLearn  v.  McLellan,  10  Pet.  625,  a  testator  had 
suiFered  a  judgment  against  him,  which,  in  the  state  where  it  was 
entered,  bound  both  his  personal  and  real  estate  for  part  of  the 
purchase-money  of  a  rice  plantation.  He  gave,  by  his  will,  the 
plantation  and  his  personal  property  to  his  son.  The  latter,  to 
obtain  possession,  gave  his  bond  and  a  mortgage  on  the  property, 
real  and  personal,  for  an  unpaid  balance  due  on  the  judgment. 
It  was  held  that  the  bond  and  mortgage  did  not  create,  and  were 
not  intended  to  create,  any  new  lien  on  the  personal  property, 
aud  therefore  threw  no  additional  burden  on  the  personal  estate. 
But  it  is  unnecessary  to  discuss  the  subject  further.  The  doctrine 
has  not  only  the  sanction  of  principle  and  frequent  and  authori- 
tative precedent,  but  has,  in  England  and  New  York,  at  least, 
had  the  approval  of  legislative  enactment. 

The  decree  of  the  orphans'  court  will  therefore  be  affirmed, 
with  costs. 


CASES  ADJUDGED 

IN  THE 

COURT  OF  ERRORS  AND  APPEALS 

or    THE 

STATE  OF  NEW  JERSEY, 
ON  APPEAL  FROM  THE  COURT  OF  CHANCERY. 

NOVEMBER  TERM,  1880. 


The  Citizens  Coach  Company,  appellants, 

V. 

The  Camden  Horse  Railroad  Company,  respondents. 

1.  The  right  acquired  by  a  horse  railroad  company,  under  a  legislative 
grant  authorizing  it  to  lay  rails  in  a  public  highway,  and  to  run  cars  thereon, 
charging  fare,  is  such  as  entitles  it  to  exclude  from  the  habitual  and  continu- 
ous use  of  its  tracks  all  companies  and  persons  engaged  in  carrying  passen- 
gers for  hire,  in  competition  with  it. 

2.  That  the  right  of  a  horse  railroad  company  is  thus  exclusive,  is  not  incon- 
sistent with  the  view  that  such  a  railroad,  laid  on  a  public  highway,  is  only  a 
modification  of  the  public  use  to  which  the  highway  was  originally  devoted, 
and  not  an  additional  burden  on  the  land  for  which  compensation  may  be 
required. 

3.  The  right  of  the  horse  railroad  company  arises  from  the  legislative  con- 
trol of  the  public  easements  of  highway.  The  legislature  may,  when  it  deems 
it  judicious  to  do  so,  grant  to  a  private  corporation  some  interest  in  the  public 
highway,  imposing  on  it  a  duty  and  obligation  to  provide  for  public  travel 
thereon  in  a  mode  promotive  of  the  public  good.  In  such  case  the  public 
easement  remains  unchanged  in  character  or  degree.     The  private  corporation 

(267) 


268         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Citizens  Coach  Co.  v.  Camden  Horse  Railroad  Co. 

acquires  so  much  of  the  public  use  as  is  necessary  for  the  purposes  of  iLs  grant, 
and  other  public  uses  are  limited  and  restrained  for  the  attainment  of  sucli 
purposes. 

4.  Arising  from  the  legislative  requirement  that  the  rails  shall  be  laid  on 
the  level  of  the  highway,  and  of  a  width  corresponding  to  the  wagon-track 
established  by  law,  there  is  an  implied  permission,  on  the  part  of  the  horse 
railroad  company,  to  the  use  of  the  track  by  other  vehicles  to  some  extent. 
Such  permission  does  not  emanate  from  the  company  so  as  to  be  revocable  by 
it.  It  results  from  the  nature  of  the  grant,  and  is  in  the  form  of  a  condition 
resulting  from  the  grant  and  its  acceptance.  The  use,  however,  thus  impliedly 
permitted  is  only  such  as  is  consistent  with  the  grant  to  the  company,  and  not 
destructive  of  its  purpose.  Any  use  inconsistent  with  the  grant,  and  destruo- 
tive  of  its  purpose,  is  excluded. 

Ou  appeal  from  the  decree  of  the  chancellor,  reported  in  Cam- 
den Horse  Railroad  Co.  y.  Citizens  Coach  Co.,  4-  Stew.  Eq.  5^5, 

Mr.  A.  C.  Scovel,  for  appellant,  cited — 

Brooklyn  Central  v.  Brooklyn  C.  M.  R.  Co.,  25  Barb. 
S64.;  Hinchman  v.  Paterson  Horse  R.  R.  Co.,  2  C.  E,  Gr, 
75 ;  Jersey  City  &  Bergen  R.  R.  Co.  v.  Jersey  City  &  Hobo- 
ken  Horse  R.  R.  Co.,  5  C.  E.  Cr.  62 ;  1  Red/,  on  Railways  {5th 
ed.)  329;  2  C.  E.  Gr.  80  ;  Hegan  v.  Eighth  Ave.  R.  R.  Co.,  15 
N.  Y.  382;  Shea  v.  Potrero  &  Bayview  R.  R.  Co.,  U  Cal.  4£8; 
Id.  JflG ;  Brooklyn  City  R.  R.  Co.  v.  Coney  Island  R.  R.  Co., 
35  Barb.  371 ;  Wilbrand  v.  Eighth  Ave.  R.  R.  Co.,  3  Bosw.  320; 
Brooklyn  Central  R.  R.  Co.  v.  Brooklyn  City  R.  R.  Co.,  32 
Barb.  370;  Sixth  Ave.  R.  R.  Co.  v.  Kerr,  45  Barb,  llfi ;  Fei- 
terick  v.  Dickenson,  22  How.  Pr.  248 ;  Brooklyn  Central  R.  R. 
Co.  V.  Brooklyn  City  R.  R.  Co.,  33  Barb.  420  ;  Jersey  City  & 
Brooklyn  R.  R.  Co.  v.  Jersey  City  &  Hoboken  R.  R.  Co.,  5  C. 
E.  Gr.  61 ;  Barker  v.  Hudson  R.  R.  Co.,  4  Daly  274  >  Metro- 
politan R.  R.  Co.  V.  Quincy  R.  R.  Co.,  12  Allen  269  ;  Adolph  v. 
Central  Park,  N.  &  E.  River  R.  R.  Co.,  65  N.  Y.  554;  S.  C,  76 
N.  Y.  533,  535,  536  ;  Albany  Law  Jour.  {May  26th,  1877),  403; 
Shfa  V.  Sixth  Ave.  R.  R.  Co.,  62  N.  Y.  180;  Com.  v.  Temple, 
14  Gray  74;  Middlesex  R.  R.  Co.  v.  Wakefield,  103  Mass.  263; 
Baxter  v.  Second  Ave.  R.  R.  Co.,  3  Rob.  516  ;  Adolph  v.  Central 
R.  R.   Co.,  33  N.  Y.  Superior  a.  187,  188;  P.  L.  of  1871  p. 


6  Stew.]  NOVEMBER  TERM,  1880.  269 

Citizens  Coach  Co.  v.  Camden  Horse  Kailroad  Co. 

33o  ^  30  ^  7;  P.  L.  of  1871  p.  ^1^7  (§  76  of  charter) ;  103 
Mass.  S06;  P.  L.  of  1866  p.  61^3 r^  C.  E.  Gr.  80;  2  Stew. 
Eq.  299;  HilUard  on  Injunctions  §  23;  Stew.  Dig.  p.  61  §§  32, 
33;  2  Stew.  Eq.  299. 

Mr.  D.  J.  Pancoast,  for  respondent,  cited — 

3  Kent's  Comm.  {12th  ed.)  4^8  ;  Ang.  &  Ames  on  Corp.  {9th  ed.) 
§  ^;  Angell  on  Highways  {2d  ed.)  28 ;  Wait's  Actions  and  Defences 
vol.  5  p.  338  ;  Jersey  City  &  Bergen  R.  R.  Co.  v.  Jersey  City  & 
Hohohen  Horse  R.  R.  Co.,  5  C.  E.  Gr.  69;  BrooUyn  R.  R.  Co. 
V.  Brooklyn  City  R.  R.  Co.,  32  Barb.  372  ;  Troy  &  Lansingburg 
R.  R.  Co.  V.  Collins;  Newburg  Turnpike  Road  v.  Miller,  5 
Johns.  Ch.  101. 

Mr.  P.  L.  Voorhees,  for  respondent,  cited — 

Mayor  of  Jersey  City  v.  Jersey  City  R.  R.  Co.,  5  G.  E.  Gr. 
366 ;  Hinchman  v.  Pater  son  Horse  R.  R.  Co.,  2  C.  E.  Gr.  75 ; 
Pater  son  &  Passaic  R.  R.  Co.  v.  Mayor  of  Paterson,  9  C.  E.  Gr. 
158 ;  Brooklyn  City  R.  R.  Co.  v.  Coney  Island  R.  R.  Co.,  35 
Barb.  26 Jf,;  1  Redf.  on  Railways  p.  5JiO  %  6 ;  Brooklyn  Central 
R.  R.  Co.  V.  Brooklyn  City  R.  R.  Co.,  32  Barb.  358, 370,  372  ; 
Davis  V.  3Iayor  of  New  York,  U  N.  Y.  506,  515,  516;  Brook- 
lyn City  R.  R.  Co.  V.  Coney  Island  R.  R.  Co.,  35  Barb.  364, 
371,  372 ;  Brooklyn  Central  6c  Jamaica  R.  R.  Co.  v.  Brook- 
lyn City  R.  R.  Co.,  33  Barb.  4^0,  4^1;  1  Redf.  on  Rail- 
ways p.  317  §§  7,  8,  p.  318  §§  9,  10,  p.  320  §  16;  Metropolitan 
R.  R.  Co.  V.  Quincy  R.  R.  Co.,  12  Allen  262,  269,  270;  Com- 
monwealth V.  Temple,  14  Gi'ay  69,  74,  77 ;  Metropolitan  R.  R. 
Co.  V.  Highland  R.  R.  Co.,  118  Mass.  290 ;  Hegan  v.  Eighth 
Ave.  R.  R.  Co.,  15  N.  Y.  380,  382;  Whitalcer  v.  Eighth  Ave. 
R.  R.  Co.,  51  N.  Y.  295,  299;  New  York  &  Harlem  R.  R.  Co. 
V.  FoHy-second  St.  R.  R.  Co.,  5  Barb.  285,  287,  309 ;  Jersey 
City  &  Bergen  R.  R.  Co.,  v.  Jersey  City  &  Hoboken  R.  R.  Co., 
5  C.  E.  Gr.  61,  71,  72;  S.  C  6  C.  E.  Gr.  550,  560;  Sixth 
Ave.  R.  R  Co.  v.  Kerr,  72  N.  Y.  330  ;  Adolph  v.  Central  Park, 
N.  d-  E.  River  R.  R.  Co.,  76  N.  Y.  530,  537;  Jersey  City  Gas 
Co.  V.  Dwight,  2  Stew.  Eq.  24^,  249,  250  ;  Raritan  d'  Delaware 


270         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Citizens  Coach  Co.  v.  Camden  Horse  Railroad  Co. 

Bay  R.  R.  Co.  v.  Delaware  &  Raritan  Canal  Co. ,3  C.  E.  Or.  54-6, 
570,  572 ;  Rennsyhania  R.  R.  Go.  v.  National  R.  R.  Co.,  8  C. 
E.  Gr.  JjJf,!  ;  1  Redf.  on  Railways  317,  notes ;  Troy  &  Lansing- 
burg  R.  R.  Go.  V.  Collings,  MS.  case,  Supreme  Gt.  N.  Y.  [Rens- 
selaer Co:),  Dec,  1878;  Kent  v.  Morgan,  2  Keen  Ch.  213; 
Cooky  on  Const.  Lim.  5U;  Glover  v.  Powell,  2  Stock.  211,  212  ; 
Delaware  &  Raritan  Canal  Co.  v.  Raritan  &  Delaware  Bay  R. 
R.  Co.,  1  C.  E.  Gr.  321,  378;  HiUiard  on  Injunctions  392  &c.; 
Boston  Water  Power  Co.  v.  Boston  &  Worcester  R.  R.  Co.,  16 
Pick.  512,  525;  Osbom  v.  Bank  of  U.  S.,  9  Wheat.  738,  838; 
Newburg  Turnpike  Co.  v.  Miller,  5  Johns.  Gh.  101 ;  Croton  Turn- 
pike Co.  V.  Ryder,  1  Johns.  Ch.  611;  Ogden  v.  Gibbons,  4- 
Johns.  Ch.  150,  160 ;  Agar  v.  Regenfs  .  Canal  Co.,  Coop.  Eq. 
77  ;  Sha7'd  v.  Henderson,  2  Dow  519  ;  Packer  v.  Sionbury  &  Erie 
R.  R.  Co.,  19  Pa.  St.  (7  Harris)  211,  218;  Kerr  on  Injunc- 
tions p.  199  §§  3,  4., p.  201  §  5;  High  on  Injunctions  212,  213; 
Eden  on  Injunctions  231 ;  HiUiard  on  Injunctions  393,  573 ; 
Kerlin  v.  West,  3  Gh\  Ch.  44^  ;  Kerr  on  Injunctions  p.  199  §  4> 
p.  542  %4)  Livingston  v.  Van  Ingen,  9  John^.  507,  562,  585 ; 
Thompson  v.  Ne:w  York  &  Harlem  R.  R.  Co.,  3  Sandf.  Ch.  626. 

The  opinion  of  the  court  was  delivered  by 

Magie,  J. 

An  act  of  the  legislature,  approved  March  23d,  1866  (P.  L. 
of  1866  p.  64-0),  created  the  Camden  Horse  Railroad  Company, 
with  a  capital  stock  of  $50,000,  and  the  privilege  of  increasing 
the  same  to  $100,000.  The  company  was,  by  that  act,  em- 
powered to  construct,  use  and  maintain  a  railroad  over  certain 
streets  in  Camden,  the  track  to  be  of  the  width  of  the  wagon 
track  then  established  by  law,  and  to  be  laid  level  with  the  sur- 
face of  the  streets  and  in  conformity  with  the  grades  then  or 
thereafter  established.  Upon  the  requirement  of  the  city  council 
of  Camden,  the  company  were  to  pay  a  tax  to  the  city,  not  ex- 
ceeding an  amount  specified  in  the  act.  The  company  was  also 
empowered  to  construct  or  purchase  suitable  vehicles  for  the 
transportation  of  passengers  and  property  over  the  railroad,  and 


6  Stew.]  NOVEMBER  TERM,  1880.  271 

Citizens  Coach  Co.  v.  Camden  Horse  Eailroad  Co. 

was  authorized  to  demaud  and  receive  for  such  transportation 
such  sums  as  it  should  think  reasonable  and  proper,  not  ex- 
ceeding, however,  a  certain  sum  fixed  by  the  act  for  each  trip  of 
a  passenger.  The  act  also  gave  to  the  company  an  action  against 
any  person  who  should  "  willfully  or  maliciously  impair,  injure, 
destroy  or  obstruct  the  use  of  said  railroad,"  and  permitted  the 
recovery  of  three  times  the  damage  sustained  by  the  company. 
The  company  was  also  empowered  to  borrow  the  money  necessary 
to  build  or  equip  said  road,  and  to  secure  the  pay&ient  thereof 
by  a  mortgage  on  the  "  road,  lands,  privileges,  franchises  and 
appurtenances  of  or  belonging  to  said  corporation." 

The  company  thus  incorporated  shortly  afterwards  built  a  rail- 
road through  some  of  the  streets  of  Camden,  in  substantial  accord- 
ance with  the  requirements  of  the  act  above  referred  to.  It  has 
since  built  other  roads  or  branches  through  other  streets  in  Camden, 
under  the  powers  given  by  the  above-mentioned  act  or  supple- 
ments thereto.  It  has  continued  to  operate  the  railroads  so 
built  ever  since. 

In  October,  1876,  the  Camden  Horse  Railroad  Company  filed 
a  bill  in  the  court  of  chancery  against  the  Citizens  Coach  Com- 
pany, setting  out  the  facts  of  the  incorporation  and  organization 
of  the  horse  railroad  company  above  stated,  and  the  construction 
of  its  railroads.  The  bill  charged  that  the  defendant  therein 
had  been  incorporated  on  July  29th,  1876,  under  the  general  law 
of  this  state  entitled  "  An  act  concerning  corporations,"  ap- 
proved April  7th,  1875,  for  the  purpose  of  carrying  passengers 
and  property  in  and  about  Camden,  for  compensation,  and  that 
it  had  continually,  since  its  organization,  made  use  of  the  rail- 
roads of  the  complainant,  in  the  pursuit  of  its  business,  by 
driving  its  coaches  upon  and  along  the  railroad  track,  to  the 
obstruction  and  hindrance  of  the  use  of  the  railroad  by  its  owner, 
the  complainant.  The  bill  also  distinctly  alleged  that  the  com- 
plainant was  entitled  to  the  exclusive  use  and  enjoyment  of  said 
railroad,  as  against  the  said  coach  company  or  any  other  person 
seeking  to  use  the  same  in  the  business  of  transporting  persons 
or  property.  The  prayer  of  the  bill  was  that  tiie  coach  company 
should  be  enjoined  from  using  with  its  coaches,  in  the  pursuit  of 


272         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Citizens  Coach  Co.  v.  Camden  Horse  Railroad  Co. 

its  business  of  carrying  passengers  in  and  about  the  city  of 
Camden,  the  railroad  of  the  complainant. 

The  Citizens  Coach  Company,  the  defendant,  filed  its  answer 
to  this  bill,  denying  that  it  had  made  such  continuous  or  ob- 
structive use  of  the  complainant's  railroad  as  was  charged,  and 
further,  denying  the  right  of  complainant  to  the  exclusive  use 
and  enjoyment  of  the  railroad  in  the  transportation  of  passen- 
gers. 

Upon  the  issue  thus  formed  proofs  were  taken,  and  upon  the 
pleadings  and  proofs  the  chancellor  concluded  that  the  complainant 
was  entitled  to  relief,  and  an  injunction  was  decreed,  restraining 
the  defendant  from  using  with  its  coaches,  in  the  pursuit  of  its 
business  of  carrying  passengers  in  and  about  the  city  of  Camden, 
the  railroad  of  the  complainant,  in  competition  with  the  com- 
plainant in  its  business  of  carrying  passengers  and  property 
thereon,  and  from  obstructing  or  hindering  complainant  in  the 
use  of  its  railroad  tracks.  The  decree  further  provided,  how- 
ever, that  it  was  not  to  be  construed  as  restraining  defendant 
from  "  using  the  tracks  incidentally  to  the  use  of  the  street." 

From  tbat  decree  the  Citizens  Coach  Company  has  appealed 
to  this  court,  and  now  contends  not  only  that  the  evidence  in  the 
cause  did  not  justify  the  court  below  in  holding  tiiat  it  was  using 
the  railroad  tracks  obstructively,  but  that  no  right  exists  in  the 
railroad  company  to  exclude  its  coaches  from  the  use  of  the  rail- 
road track,  although  engaged  in  carrying  passengers  for  hire  in 
competition  with  the  railroad  company. 

The  first  contention  it  is  unnecessary  to  stop  to  consider.  The 
evidence  seems  to  be  ample  of  such  a  continuous  and  obstructive 
use  of  the  railroad  track  by  the  coaches  of  the  coach  company 
as  greatly  to  interfere  with  and  impede  the  horse  railroad  com- 
pany in  its  use  of  its  track.  Whether  this  alone  would  justify 
an  injunction  before  action  at  law  might  be  questionable. 

But  the  main  question  in  this  case  is  presented  by  the  other 
contention  of  the  appellant.  It  is  a  question  of  very  great  im- 
portance, not  only  to  the  parties  to  this  cause  and  those  inter- 
ested in  them  as  stockholders  or  otherwise,  but  also  to  the  stock 
and    bondholders    of  the   numerous   horse   railroad   companies 


6  Stew.]  NOVEMBER  TERM,  1880.  273 

Citizens  Coach  Co.  v.  Camden  Hoi-se  Kailroad  Co. 

organized  and  operated  in  this  state  under  grants  substantially 
similar  to  that  in  question  in  this  ease.  It  requires  the  consider- 
ation and  determination  of  the  nature  and  extent  of  the  rights 
acquired  by  a  horse  railroad  company  under  such  legislation  as 
appears  in  this  case,  with  respect  to  the  public  highways  on 
which  the  rails  of  its  track  are  laid. 

The  question  of  the  rights  of  such  a  company  with  respect  to 
the  owners  of  the  land  under  the  highway  on  which  the  track  is 
laid  has  been  the  subject  of  much  judicial  consideration.  The 
question  has  arisen  upon  the  demand  of  the  land-owner  to  be 
awarded  compensation  for  the  occupation  of  his  laud  by  the 
railroad.  He  has  contended  that  such  an  occupation  of  the  pub- 
lic highway  imposed  upon  his  land  a  burden  greater  than  that 
Avhich  it  sustained  before,  and  which  amounted  to  a  taking  of 
his  land,  or  some  interest  therein,  for  which  he  was  entitled  to 
compensation.  On  the  other  hand,  the  railroad  companies  have 
contended  that  the  occupation  of  the  highway  by  the  track  and 
its  use  by  the  cars  was  no  other  or  different  use  than  that  public 
use  to  which  the  highway  was  originally  devoted. 

A  similar  question  had  arisen  in  the  early  periods  of  the  his- 
tory of  railroads  designed  to  be  operated  by  steam-power.  With 
a  limited  and  imperfect  knowledge  of  the  extent  of  development 
to  which  such  roads  were  destined  to  attain,  or  with  an  exagger- 
ated or  distorted  view  of  their  character  as  public  highways,  it 
was  long  contended  that  such  railroads  might  occupy  the  soil  of 
ordinary  public  highways  without  making  compensation  to  the 
land-owner.  Much  difference  of  judicial  opinion  and  decision 
may  be  found  on  this  subject.  In  this  state,  in  the  case  of 
Morris  and  Essex  R.  R.  Co.  v.  Newark,  2  Stock.  352,  Chancellor 
Williamson  expressed  the  opinion  that  the  legislature  might 
authorize  a  railroad  operated  by  steam  to  be  laid  on  the  public 
highway,  and  that  if  the  occupation  did  not  entirely  destroy  the 
use  of  the  highway  in  the  ordinary  mode,  it  was  not  such  a 
taking  of  private  property  as  required  compensation  to  be  made. 
On  the  other  hand,  the  supreme  court,  about  the  same  time,  in 
I  the  case  of  Starr  v.  Camden  and  Atlantic  R.  R.  Co.,  4-  Zab.  592, 
j  held  that  the  owner  of  land  under  a  public  highway  taken  by  a 

i  18 


274         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Citizens  Coach  Co.  v.  Camden  Horse  Railroad  Co. 

railroad  operated  by  steam,  was  entitled  to  compensation.  The 
cases  of  Hetjkld  v.  Central  R.  R.  Co.,  5  Dutch.  671,  and  M.  d; 
E.  R.  R.  Co.  V.  Prudden,  I^  C.  E.  Gr.  386;  S.  C,  5  C.  E.  Gr. 
630,  indicate  that  the  view  taken  by  the  supreme  court  is  correct. 
And  the  reason  is  pointed  out  by  Chancellor  Green,  in  the  case 
of  Mnchman  v.  Paterson  H.  R.  R.\  Co.,  2  C.  E.  Gh\  76,  with 
his  usual  perspicuity  and  breadth  of  view.  And  considering 
the  developments  of  the  railroads  of  the  country,  it  is  now  per- 
fectly obvious  that  the  use  of  a  public  highway  longitudinally 
by  a  railroad  operated  by  steam,  is  a  use  entirely  inconsistent 
witli  and  destructive  of  the  public  use  to  which  the  highway  was 
originally  devoted.  The  rate  of  speed  at  which  such  roads  are 
operated  is  dangerous  to  the  public  who  would  otherwise  use  the 
highway.  It  makes  use  of  rails  not  adapted  to,  but  obstructive 
of,  the  ordinary  public  use  of  the  highway  by  the  usual  vehicles 
of  travel  thereon.  The  noise,  the  danger,  the  obstruction  of  its 
road-bed,  all  combine  to  make  the  use  of  the  highway  by  such  a 
railroad  incompatible  with  its  general  use  as  a  public  highway. 
In  such  a  case,  then,  the  railroad  becomes  a  manifest  burden  on 
the  soil  additional  to  that  originally  imposed  by  the  public  high- 
way, which  is  a  taking  of  property  for  which  compensation  must 
be  made.  The  question  may  be  considered  as  set  at  rest,  now,  in 
favor  of  the  above  views,  by  a  decided  weight  of  authorities,  to 
be  found  collected  in  1  Red/,  on  Railways  {6th  ed.)  314-  ^i 
seq.,  and  notes. 

It  is  obvious,  however,  that  an  ordinary  horse  railroad,  in 
occupying  a  highway  with  its  track,  and  making  use  of  it  with 
its  cars,  produces  a  different  result  from  that  produced  by  such 
an  occupation  and  use  by  a  railroad  operated  by  steam.  By 
legislative  direction,  the  track  of  the  horse  railroad  is  required 
to  be  (as  in  this  case)  so  constructed  not  only  as  not  to  interfere 
with  or  prevent  the  passage  of  other  vehicles,  but  to  be  adapted 
to  such  passage  both  across  and  along  the  rails.  The  cars  are 
drawn  by  animals  such  as  usually  draw  the  vehicles  used  on 
public  highways.  They  carry  along  the  highway  such  passengers 
as  otherwise  would  be  obliged  to  pass  over  it  on  foot  or  in  other 
vehicles,  and  do  so  with  no  more  injury  in  the  way  of  noise,  jar 


6  Stew.J  NOVEMBER  TERM,  1880  275 

Citizens  Coacii  Co.  v.  Camden  Horse  Eailroad  Co. 

or  disturbance  than  would  be  occasioned  by  the  passage  of  other 
vehicles.  The  ase,  if  it  be  novel  and  peculiar  in  its  form,  is  but 
a  modification  of  the  original  use  to  which  the  highway  was  de- 
voted when  it  became  a  highway.  The  burden  imposed  thereby 
upon  the  land-owner,  so  far  as  the  use  of  his  property  is  con- 
cerned, is  identical  in  kind  and  no  greater  in  degree  than  was 
originally  imposed  on  the  land  when  the  highway  was  opened. 
Such  was  the  view  taken  by  Chancellor  Green  in  the  case  of 
Hinchman  v.  Paterson  H.  R.  R.  Co.,  above  cited,  and  he  con- 
sequently held  that  the  occupation  of  a  street  by  a  horse  railroad 
was  not  such  a  taking  of  property  as  would  entitle  the  owner  to 
compensation.  This  view  was  mentioned  with  approval  by  Chief 
Justice  Bea^ley,  in  State  v.  Laverack,  5  Vr.  201,  and  by  Chan- 
cellor Zabriskie,  in  Jersey  City  and  Bergen  R.  R.  Co.  v.  Jersey 
City  and  Hohohen  R.  R.  Co.,  5  C.  E.  Gr.  61, 66,  and  was  followed 
by  the  present  chancellor,  in  Paterson  and  Passaic  Horse  R.  R. 
Co.  V.  Paterson,  9  C.  E.  Gr.  158. 

I  do  not  hesitate  to  adopt  this  view,  sanctioned  by  such  authori- 
ties and  so  reasonable  in  itself,  and  to  conclude  that,  so  far  as  the 
owner  of  land  under  a  highway  is  concerned,  the  use  of  the  high- 
way, by  legislative  sanction,  by  a  horse  railroad  is  not  inconsistent 
with  the  public  use  to  which  the  highway  was  originally  devoted, 
and  is  not  an  additional  burden  imposed  on  the  land,  but  only 
a  variation  or  modification  of  the  public  right  and  easement  origi- 
nally acquired.  Consequently,  such  owner  has  no  right  to  claim 
compensation  for  such  occupation  of  the  highway. 

While  this  view  has  been  adopted  by  many  courts,  it  has  also 
been  controverted  by  judges  of  repute,  and  the  decisions  are  con- 
sequently very  conflicting.  No  good  purpose  will  be  served  by 
a  critical  examination  of  the  cases  in  this  opinion.  It  is  sufficient 
to  say  that,  when  analyzed,  the  difference  between  the  cases 
seems  to  arise  from  the  different  views  entertained  by  the  judges 
in  respect  to  the  practical  question  as  to  how  far  the  use  of  the 
highway  by  the  railroad  is  incompatible  with  the  use  to  which 
the  highway  was  originally  devoted.  And  it  may  be  remarked 
that  when  a  conclu.sion,  different  from  that  to  which  I  have  ar- 
rived, has  been  reached,  dissenting  opinions  have  been  expressed 


276         COURT  OF  ERRORS  AXD  APPEALS.  [33  Eq. 

Citizens  Coach  Co.  v.  Camden  Horse  Kailroad  Co. 

l)y  judges  wliose  opinions  are  entitled  to  respect.  See  39  X.  Y. 
JfOJf..  The  cases  may  be  found  collected  in  1  Redf.  on  Railways 
{6th  ed.)  317  and  notes.  In  the  late  case  of  Att'y-  Gen.  v.  Metro- 
politan R.  R.  Co.,  125  Mass.  515,  the  supreme  court  of  Massa- 
chusetts reach  a  conclusion  in  accord  with  that  to  which  we  have 
arrived. 

The  discussion,  so  far,  may  seem,  perhaps,  to  be  somewhat>^ 
beside  the  real  question  in  this  case.  But  its  applicability  will 
be  recognized  when  it  is  understood  that  it  is  insisted  that  the 
conclusion  to  which  we  have  arrived  compels  us  to  adopt  a  view 
of  the  case  adverse  to  the  claim  of  the  appellee.  It  is  insisted 
that  if  the  property-owner  be  not  entitled  to  compensation,  on 
the  ground  that  the  burden  on  his  land  is  not  increased  by  the 
use  of  the  highway  by  a  horse  railroad,  but  that  such  use  is  a 
mere  modification  of  the  public  easement  before  taken,  then  it 
follows  that  the  public  right  must  continue  and  remain,  as  before, 
open  to  every  person.  It  is  claimed  that  a  use  of  the  highway 
■which  would  exclude,  in  whole  or  in  part,  a  portion  of  the  public, 
is  incompatible  with  such  use  as  the  highway  w^as  originally  de- 
voted to,  and  therefore  that  it  cannot  be  consistently  held  that 
any  exclusive  rights  are  vested  in  horse  railroad  companies. 

I  am  unable  to  see  any  force  in  this  objection.  When  a  high- 
way has  been  once  taken  for  public  use,  the  owner  of  the  land 
retains  his  title  to  the  same,  subject  to  the  public  easement. 
That  public  easement  vests  in  the  public.  How  far  it  extends 
it  is  not  necessary  now  to  inquire.  Whether  it  gives  power  for 
the  laying  of  underground  or  the  building  of  elevated  railroads, 
need  not  be  considered.  It  is  sufficient  to  consider  the  easement 
as  one  of  a  right  of  passage  over  the  same  by  the  public.  This 
right,  however,  the  legislature  may,  it  is  well  settled,  control. 
It  may  control  the  road  for  the  public  use ;  it  may  regulate  the 
public  use.  Thus,  it  will  be  conceded,  changes  of  the  grade  of 
highways  may  be  made  by  the  public  authorities,  and  the  lanil- 
owner  is  entitled  to  no  compensation  or  redress,  however  injuri- 
ous or  destructive  such  changes  may  be,  unless  under  the  pro- 
visions of  such  a  statute  as  exists  in  this  state.  Rev.  1009.  The 
public  may,   without  further  compensation,  lay  sewers  in   the 


6  Stew.]  XOVEMBER  TERM,  1880.  277 

Citizens  Coach  Co.  v.  Camden  Horse  Rarlroad  Co. 

highway.  Stoudlnger  v.  Newark,  1  Steio.  Eq.  Jf.If,6.  Water-i)ipe3, 
it  seems,  may  be  laid  within  the  highway  as  part  of  the  original 
bnrden,  at  the  legislative  will.  Jersey  City  v.  Hudson,  2  Beas. 
^£0.  And  in  the  well-considered  case  of  Wright  v.  Carter,  3 
Dutch.  76,  the  supreme  court.  Chief  Justice  Green  delivering 
their  opinion,  held  that  the  legislature  might  authorize  a  turnpike 
company  to  take  a  public  highway  and  construct  its  turnpike 
thereon,  without  making  compensation  to  the  land-owner  whose 
lands  were  thus  appropriated.  The  act,  which  was  the  subject 
of  consideration  in  that  case,  provided  for  the  vacation  of  the 
public  highway  by  surveyors  of  the  highways,  and  it  ajjpeared, 
in  the  case,  that  it  was  so  vacated  for  the  purposes  of  the  turn- 
pike. It  also  appeared  that  the  turnpike  company  were  author- 
ized to  charge  tolls  for  all  persons  traveling  thereon.  But  the 
court  held  that  the  public  easement  originally  acquired  over  the 
land  was  not  thereby  discharged,  and  although  transferred  to  a 
private  corporation  authorized  to  exact  tolls  from  travelers  and 
empowered  to  exclude  all  who  did  not  pay  toll  to  them,  remained 
yet  the  same  public  easement,  and  was  not  an  additional  burden 
on  the  land  for  which  compensation  could  be  required.  This 
decision  it  is  unnecessary  to  vindicate  or  support  in  this  court, 
because,  although  the  case  of  Wright  v.  Carter  was  afterwards 
reversed  (no  opinion  appearing  in  the  reports),  it  is  understood 
that  the  reversal  was  upon  other  grounds,  and  that  the  opinion 
of  the  court  below,  on  the  point  in  question,  was  approved. 
S  Dutch.  685,  note  ;  State  v.  Laverack,  5  Vr.  207  ;  Freeholders  v. 
Eed  Bank  Turnpike  Co.,  3  C.  E.  Gr.  93.  But  I  think  the  deci- 
sion may  well  be  vindicated  upon  plainest  principles.  The  public 
easement  requires  for  its  beneficial  use  the  making  and  mainte- 
nance of  a  roadway.  The  legislature,  representing  the  public, 
may  well  determine  whether  this  shall  be  done  by  the  public,  and 
at  its  expense,  or  by  a  priv^ate  corpoi'ation.  In  the  latter  case  it 
may  give  to  such  corporation  a  right  to  exact  reasonable  tolls,  to 
remunerate  it  for  its  outlay  and  labor.  The  object  is  not  the 
benefit  of  the  private  corporation.  That  is  merely  incidental. 
The  real  design  is  the  public  good  in  the  use  of  the  public  high- 
way.    If  that  can  be  best  served,  in  the  judgment  of  those  rep- 


278         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Citizens  Coach  Co.  v.  Camden  Horse  Railroad  Co. 

resenting  the  public,  by  making  a  turnpike  thereon,  it  may  prop- 
erly be  done.  Manifestly,  then,  no  additional  burden  is  thereby 
imposed  on  the  land-owner.  See,  also,  Benedict  v.  Goit,  3  Barb. 
459. 

I  do  not  perceive,  therefore,  that  the  use  of  the  highway  by  a 
horse  railroad  company,  if  held  to  be  exclusive  of  its  use  to  some 
extent  by  others,  is  thereby  an  additional  burden  on  the  land. 
Nor  can  I  see  any  inconsistency  in  holding  that  the  land-owner 
is  not  entitled  to  compensation,  although  the  use  is  more  or  less 
exclusive.  Such  use  is,  in  fact,  but  a  modification  of  the  original 
public  use,  established  by  the  representatives  of  the  public,  to 
serve  the  public  purpose  in  the  transportation  of  passengers  upon 
the  highway.  It  is  for  the  legislature  to  decide  if  this  is  a 
judicious  and  proper  mode  of  use  for  the  public  good.  If  it  is 
so  considered,  then  the  legislature  may  authorize  it,  and  may 
limit  and  control  other  public  uses  of  the  highway  for  that  pur- 
pose. So  long  as  the  use  made  is  of  the  same  kind  as  that  to 
which  the  laud  was  originally  devoted,  the  owner  cannot  com- 
plain of  any  modifications  or  limitations  of  it. 

Let  us  next  inquire  what  rights  a  horse  railroad  company 
acquires  by  the  legislation  wdth  respect  to  other  persons  making 
use  of  the  highway  in  passing  and  repassing  thereon.  Are  its 
rights  merely  those  of  passage  back  and  forth  upon  the  rails 
which  it  has  been  permitted  to  lay  upon  the  public  highway? 
Or  has  it  the  power  of  excluding  others  from  the  use  of  its 
rails,  and  if  so,  how  far  does  that  power  extend? 

The  grant  in  this  case  must  be  conceded  to  be  of  a  franchise. 
It  includes  the  right  to  lay  down  tracks,  to  run  carriages  thereon, 
to  carry  passengers,  and  to  exact  tolls.  Such  a  grant  must  be 
construed  as  giving  all  the  powers  reasonably  necessary  to  accom- 
plish the  manifest  object.  M.  &  E.  R.  R.  Co.  v.  Sussex  R.  R.  Co., 
5  C.  E.  Gr.  54^.  That  it  contains  no  words  of  exclusion,  is  not 
of  consequence,  for  the  grant  of  a  franchise,  by  its  intrinsic  force, 
is  exclusive  against  all  persons  but  the  state.  R.  &  D.  Bay  R.  R. 
Co.  V.  D.  &  R.  Can.  Co.,  3  C.  E.  Gr.  54.6,  572.  As  was  well  said 
by  Chief  Justice  Shaw,  in  Commomcealth  v.  Temple,  14  Gray  76, 
"  The  accommodation  of  travelers,  of  all  who  have  occasion  to 


6  Stew.]  NOVEMBER  TERM,  1880.  279 

Citizens  Coach  Co.  v.  Camden  Horse  Railroad  Co. 

use  them,  at  certain  rates  of  fare,  is  tlie  Jeadiug  object  and  public 
benefit  for  which  these  special  modes  of  using  the  highway  are 
granted,  and  not  the  profit  of  the  proprietors."  "  The  profit  to  the 
proprietors  is  a  mere  mode  of  compensating  them  for  their  outlay 
of  capital  in  providing  and  keeping  up  this  public  easement." 
^' Every  such  grant  must,  therefore,  be  held  to  carry  with  it  all 
incidental  rights  which  are  necessary  to  its  full  use  and  beneficial 
enjoyment.  When  the  grant  has  for  its  object  the  procurement 
of  an  easement  for  the  public,  the  incidental  powers  must  be  so  con- 
strued as  most  effectually  to  secure  to  the  public  the  full  enjoy- 
ment of  such  easement." 

Upon  such  grounds  horse  railroad  companies  have  been  held 
to  have  certain  exclusive  rights,  because  the  exercise  of  such 
rights  is  plainly  necessary  to  the  existence  and  beneficial  use  of 
the  railroad.  Thus  a  horse  car  is  held  to  be  entitled  to  the 
exclusive  use  of  its  track,  so  that  another  vehicle  in  meeting  it, 
is,  contrary  to  the  usual  rule  of  the  road,  required  to  give  way 
and  entirely  remove  from  its  track.  A  similar  rule  is  adopted 
when  the  horse  car  overtakes  a  vehicle  proceeding  in  the  same 
direction,  or  encounters  a  vehicle  lawfully  stopping  in  the  street 
to  deliver  goods,  &c.  Commonwealth  v.  Temple,  ubi  sup. ;  State  v. 
Foley,  31  Iowa  527 ;  Hegan  v.  Eighth  Ave.  R.  R.  Co.,  15  N.  Y. 
380,  and  other  cases  cited  in  the  chancellor's  opinion. 

It  has  also  been  held  that  a  horse  railroad  company  may 
exclude  from  its  tracks  the  cars  of  another  horse  railroad  com- 
pany, though  given  authority  to  use  such  tracks  by  the  legisla- 
ture, unless  compensation  is  required  to  be  made.  J.  C.  &  Bergen 
R.  R.  Co.  v.  J.  C.  &  Hob.  R.  R.  Co.,  5  C.  E.  Gr.  66;  8.  C,  6  G. 
Gr.  550;  Brooklyn  Cent.  R.  R.  Co.  v.  Brooklyn  City  R.  R.  Co.,  33 
Barb.  358  ;  Metrop.  R.  R.  Co.  v.  Quincy  R.  R.  Co.,  12  Allen  262. 
Now  the  use  of  one  railroad  by  the  cars  of  another  company  may 
be  objectionable,  because  it  is  probable,  and  almost  certain,  that 
such  use  would  be  incompatible  with  its  full  use  and  enjoyment 
by  the  company  that  laid  it.  But  it  is  not  difficult  to  conceive 
of  cases  where  it  would  be  quite  possible  to  run  cars  on  other 
railroads,  at  least  for  short  distances,  without  interfering  with 
the  regular  use  of  the  road  by  the  owners.     And  so  in  the  cases 


280         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Citizens  Ck)ach  Co.  v.  Camden  Horse  Railroad  Co. 

last  cited,  the  ground  of  the  decision  has  been,  not  that  there  was 
an  interference  with  the  full  use  of  the  railroad,  but  that  there 
was  such  an  occupation  of  the  property  and  franchise  of  the  rail- 
road company  as  was  manifestly  a  taking  or  appropriation  of 
property  for  which  compensation  might  be  required,  and  must 
be  provided.  Such  was  the  view  taken  by  Chancellor  Zabriskie 
in  the  case  in  6  C.  E.  Gr.  66 ^  above  cited.  The  iron  rails  of 
the  railroad  laid  in  the  street,  he  held  to  be  the  property  of  the 
railroad  company,  not  abandoned  to  the  public  or  to  every  use 
by  those  passing  over  the  street.  Such  use  as  was  incidental  and 
occasional  was  held  to  be  justified  by  an  implied  permission 
arising  from  the  mode  in  which  the  track  was  required  to  be 
laid.  But  such  use  was  held  not  to  include  the  use  of  the  track 
for  a  competing  traffic  by  the  regular  running,  over  the  rails,  of 
cars  or  carriages  adapted  to  the  track  and  operated  by  a  rival 
company.  When  that  case  came  into  this  court  by  appeal,  no 
dissent  was  expressed  from  the  views  of  the  chancellor.  The 
decision  here  virtually  conceded  their  correctness,  so  far  as  the 
right  of  compensation  was  dependent  on  a  franchise  and  property 
in  the  railroad.  But  this  court  held  that  compensation  for  the 
appropriation  of  the  property  had  been  substantially  provided 
for  in  the  legislative  scheme.     See  6  C.  E.  Gr.  557. 

Now  if  a  railroad  company  have  a  property  in  their  track  laid 
on  the  highway,  and  in  their  franchise  of  operating  it  for  tolls, 
which  entitles  them  to  compensation  for  the  use  of  it  by  a  rival 
car  company,  on  what  substantial  ground  can  it  be  denied  the 
same  right  when  a  like  use  is  made  of  its  track  by  coaches  or 
omnibuses  of  competing  companies?  It  is  true  that  there  may 
be  a  vast  difference  in  the  degree  to  which  a  railroad  company 
would  be  interfered  with,  whether  the  interference  proceeds  from 
use  by  cars  or  by  coaches  capable  of  being  turned  off  the  track ; 
but,  so  far  as  the  property  and  franchise  are  concerned,  the  inter- 
ference is  identical  in  kind.  The  use  in  each  case  is  equally  an 
appropriation  of  property,  which  its  owner  may  resist  unless 
compensation  be  provided  for  him. 

It  is  urged,  with  great  force,  that  there  is  an  implied  permis- 
sion to  use  the  rails  thus  laid  on  a  public  highway,  to  every  one 


6  Stew.]  NOVEMBER  TERM,  1880.  281 

Citizens  Coach  Co.  v.  Camden  Horse  Eailroad  Co. 

lawfully  passing  over  the  public  road  in  the  prosecution  of  a 
lawful  business,  and  who  do  not  directly  interfere  with  the  pas- 
sage of  the  cars.  It  may  be  conceded  that,  by  the  legislative 
requirement  that  the  rails  should  be  laid  and  maintained  on  the 
level  of  the  road  and  of  the  width  of  the  ordinary  wagon  track, 
and  by  the  company's  acceptance  of  such  terms  in  the  grant,  some 
permission  to  use  the  rails  is  implied.  It  is  a  permission  not 
emanating  from  the  company,  nor  is  it  revocable  by  it.  It  arises 
from  the  nature  of  the  grant,  and  the  conditions  under  which  the 
track  is  allowed  to  be  laid.  So  far  as  its  use,  by  persons  driving 
for  pleasure,  on  journeys,  or  in  ordinary  traffic  is  concerned,  such 
an  implication  may  well  arise.  Such  use  is  in  no  way  inconsist- 
ent with  the  grant  to  the  company,  and  is  not  destructive  to  its 
business.  It  does  not  affect  the  company's  rights  or  franchise. 
It  may  wear  its  rails,  but  that  is  part  of  the  compensation  the 
company  gives  the  public  for  its  rights.  But  the  implied  per- 
mission now  discussed  must  not  be  extended  further  than  is  con- 
sistent with  the  purpose  and  design  of  the  grant  to  the  company. 
That  purpose  was  to  serve  the  public  by  a  use  of  the  public 
highway  for  public  travel,  whereby  a  cheap,  convenient  and  regu- 
larly-recurring mode  of  carriage  should  be  provided  for  all  pas- 
sengers. For  that  purpose  all  the  powers  of  the  company  were 
given.  Undoubtedly  a  correlative  duty  devolved  on  the  com- 
pany to  lay  its  track  and  to  run  its  cars  for  the  benefit  of  the 
public.  Under  such  circumstances,  the  laying  of  the  rails  must 
be  considered  a  permission  to  use  them  only  so  far  as  such  use  is 
consistent  with  the  grant  and  its  purpose.  Clearly  the  railroad 
has  not  become  part  of  the  street.  The  sills,  ties  and  rails  are 
laid  on  the  street,  but  they  are  not  part  of  it.  They  constitute 
a  part  of  the  machinery  for  the  transportation  of  passengers,  and, 
although  placed  on  the  street,  no  more  become  part  of  it  than  the 
cars  or  carriages  placed  on  the  rails.  Brooklyn  Cent  R.  M.  Co.  v. 
Brooklyn  City  B.  R.  Co.,  ubi  sup.  Retaining  thus  its  property,  no 
permission  to  use  it  will  be  implied,  if  the  use  is  inconsistent  with 
the  grant  and  its  purpose.  And  there  can  be  no  question  but  that  its 
use  for  a  business  competitive  with  that  for  which  the  company 
was  created,  is  inconsistent  with  the  grant,  and  tends  to  thwart  its 


282         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Citizens  Coach  Co.  v.  Camden  Horse  Railroad  Co. 

purpose  and  to  destroy  the  usefulness  of  the  company  to  the 
public.  Permission  for  a  use  inconsistent  with  the  grant  will 
not  be  implied.  On  the  contrary,  the  implication  is  of  an 
exclusion  of  such  use. 

The  conclusion  then  is,  that  the  horse  railroad  company,  the 
complainant  below,  acquired,  by  the  grant  contained  in  the  char- 
ter, a  franchise  and  property  in  its  tracks  when  laid,  which  is 
exclusive  of  the  use  thereof  by  other  persons  or  companies,  in 
competition  with  it  in  the  business  of  carrying  passengers  for 
hire. 

The  cases  cited  in  the  opinion  of  the  chancellor  indicate  an 
almost  universal  acquiescence  in  this  conclusion,  wherever  this 
question  has  been  raised.  In  addition  to  those  cases,  there  may 
be  cited  the  case  of  Buffalo  B.  R.  Co.  v.  Leighion,  in  which, 
upon  a  state  of  facts  identical  with  this  case.  Chief- Justice  Shel- 
don, of  the  Supreme  Court  of  Buffalo,  at  June  term,  1880, 
restrained  the  defendant  from  using  the  tracks  of  the  plaintiff's 
railroad  in  the  business  of  carrying  passengers  in  vehicles  of  any 
description.  The  whole  subject  is  admirably  summed  up  in  a 
report  to  the  legislature  of  Massachusetts,  made  in  1865,  and  to 
be  found  in  1  Red/,  on  Railways  328. 

Upon  such  a  conclusion  being  arrived  at,  it  is  quite  manifest 
that  the  decree  below  must  be  sustained.  Such  an  interference 
with  a  franchise  granted  by  the  state,  and  exclusive  in  its  char- 
acter, as  is  proved  to  have  occurred  in  tliis  case,  may  be  restrained 
by  injunction.  R.  &  D.  B.  R.  R.  Co.  v.  D.  &  R.  Can.  Co.,  3 
a  E.  Gr.  54.6. 

It  may  be  further  remarked  that  any  possible  right  which 
the  coach  company  may  have  to  the  incidental  use  of  the  rails  in 
the  use  of  the  street,  has  been  preserved  by  the  decree  and  injunc- 
tion. No  appeal  was  taken  on  the  part  of  the  complainant 
below,  and  I  have  thought  it  unnecessary  to  consider  the  ques- 
tion presented  by  this  limitation. 

Beasley,  C.  J. 

The  object  of  the  bill  exhibited  in  this  case  is  to  prevent  the 
use  and  obstruction  of  the  complainant's  horse  railroad,  in  the 


6  STE\y.]  NOVEMBER  TERM,  1880.  283 

Citizens  Coach  Co.  v.  Camden  Horse  Railroad  Co. 

city  of  Camden,  by  the  Citizens  Coach  Company,  the  appellant 
in  this  court. 

I  have  had  no  difficulty  in  settling  in  my  own  mind  what  the 
rights,  under  ordinary  circumstances,  of  the  horse  railroad  com- 
pany are.  The  company  was  duly  chartered  by  the  legislature  to 
build  their  road,  and  to  run  cars  and  other  vehicles  upon  it,  and 
to  charge  for  the  transportation  of  persons  and  property  thereon, 
provided  that  such  charge  should  not  exceed  a  certain  maximum 
sum.  I  regard  this  grant  of  power  as  giving  to  the  corporation 
on  which  it  was  conferred  the  exclusive  right  to  the  use  of  this 
road  as  a  railroad.  No  one,  without  its  consent,  can  put  cars  or 
other  vehicles  upon  such  track,  for  the  purpose  of  using  it  as  a 
railroad.  And  further,  as  a  necessary  incident,  this  company 
acquired  the  right  of  w^ay  when  overtaking  or  meeting  ordinary 
vehicles. 

On  the  other  hand,  I  have  no  idea  that,  by  thus  having  laid 
this  track,  such  company  acquired  the  exclusive  right  to  use  the 
space  so  occupied,  or  any  part  of  such  space.  That  space  still 
remained  part  of  the  public  street,  open,  in  its  entire  area,  to  the 
use,  in  the  ordinary  way,  of  every  citizen.  Such  citizens,  under 
such  conditions,  could  use,  as  a  part  of  the  street,  either  trans- 
versely or  longitudinally,  the  rails  so  laid.  I  would  refer  only  so 
far  to  the  authorities  as  to  say  that,  with  almost  entire  unanimity, 
they  maintain  this  right  in  the  public  as  against  such  a  chartered 
right  as  the  one  now  in  question.  And  it  is  also  obvious  that  it 
is  upon  this  foundation  alone  that  the  legislative  claim,  which 
has  been  several  times  sanctioned  by  the  courts  of  this  state,  to 
appropriate  the  public  streets  to  the  use  of  these  railroads,  with- 
out making  compensation  to  the  land-owners  whose  title  extends 
over  tlie  property  so  applied,  can  be  justified.  Nor  does  it  seem 
to  me  that  any  class  of  persons  is  excluded  from  the  enjoyment 
of  this  public  right.  A  company  or  a  corporation  engaged  in  a 
business  competition  with  that  of  this  railroad  company  neither 
loses  nor  gains  anything  by  such  a  relation.  The  entire  street 
can  be  used  in  such  a  competition  to  the  same  extent,  and  in  the 
same  manner,  as  it  is  lawful  to  use  it  in  the  pursuit  of  any  other 
business. 


284         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Citizens  Coach  Co.  v.  Camden  Horse  Railroail  Cn. 

Such  being  the  relative  rights  of  the  public  and  of  the  rail- 
road company,  the  question  arises  in  this  case  whether,  in  the 
matters  here  complained  of,  the  rights  of  the  latter  have  been 
infringed  by  the  appellant.  The  respondent  complains  that  the 
appellant  has  been  using  its  railroad  in  the  transportation  of 
passengers.  The  latter  avers  that  it  has  only  been  using  the 
railroad  in  such  business  as  a  part  of  the  public  highway,  as  it 
had  a  right  to  do.  It  seems  to  me  that  the  question  is  solved  as 
soon  as  it  is  determined  what  is  a  use  of  the  railroad  and  what 
a  use  of  the  highway.  The  peculiarity  of  the  use  of  the  rail- 
road consists  in  its  continuity ;  the  vehicles  remain  upon  the  rails 
from  one  terminus  to  the  other,  thereby  gaining  the  advantage  of 
avoiding  the  impediments  incident  to  the  uneven  surfaces  of 
ordinary  road-beds.  But  when  the  railroad  is  used  as  a  part  of 
the  highway,  there  is  no  such  continuity  of  use.  It  is  true  that 
on  such  occasions  ordinary  vehicles  will  be  run,  for  various  dis- 
tances, upon  the  rails ;  but  such  use  of  them  is  accidental  and 
intermittent.  I  think  it  results  from  these  definitions  that  when, 
in  the  pursuit  of  any  business,  the  wagons  connected  with  it  are 
run,  by  way  of  preference  and  to  the  largest  extent  practicable, 
on  one  of  these  railroads,  such  practice  is  a  use  of  the  railroad. 
Such  use  differs  very  slightly  from  that  which  the  company 
makes  of  its  own  road.  It  is  true  that,  in  a  wide  sense,  such  use 
is  a  use  of  the  public  street ;  but,  in  the  same  sense,  so  is  that  of 
the  railroad  company  with  its  cars.  Therefore  it  seems  to  me 
that  where  it  is  a  part  of  the  scheme  of  a  business  to  use  in  its 
prosecution  the  railroad  track  in  preference  to  the  other  parts  of 
the  highway,  the  carrying  out  of  such  plan  is  a  use  of  the  rail- 
road, and  is  a  violation  of  the  exclusive  franchise  which  I  have 
said  is,  in  that  respect,  vested  in  the  railroad  company. 

And  this,  I  think,  is  what  has  been  done  in  the  present  case. 
The  evidence  has  satisfied  me  that  the  use  that  has  been  made  of 
the  road  of  this  respondent  by  the  vehicles  of  the  appellant  has 
been  the  result,  not  of  accident,  but  of  design.  It  has  been 
quite  clearly  proved  that  there  has  been  an  understanding,  either 
express  or  tacit,  between  the  managers  of  this  coach  company 
and  their  employees,  that  the  road  of  the  respondent  was  to  be 


6  Steay.]  NOVEMBER  TERM,  1880.  285 

citizens  Coach  C!o.  v.  Camden  Horse  Railroad  Co. 

converted  into  one  of  the  efficient  instruments  of  its  busi- 
ness; and  as  was  to  be  expected,  such  understanding  has  been 
put  into  effect,  utterly  regardless  of  the  embarrassments  which, 
by  such  action,  were  thrown  upon  the  respondent.  The  road  of 
the  respondent  has  not  only  been  used  by  this  rival  company  to 
the  greatest  extent  practicable,  but  has  been  used  in  such  a  man- 
ner as  seriously  to  obstruct  the  convenient  employment  of  it  by 
its  owner.  Against  the  continuance  of  such  conduct  the  respond- 
ent had  a  right  to  appeal  to  the  law  for  protection. 

And  it  is  on  this  same  ground  that  it  appears  to  me  that  the 
relief  by  injunction  was  admissible.  These  interferences  with 
the  rights  of  the  respondent  being  the  outcome  of  an  organized 
plan,  could  not  be  sufficiently  remedied  except  by  the  preventive 
power  of  a  court  of  equity.  Occasional  interruptions  and  inva- 
sions of  this  franchise,  not  being  parts  of  a  general  scheme, 
would  not  have  justified  such  interposition,  as  such  wrongs, 
being  both  public  and  private  nuisances,  could  have  been  suf- 
ficiently repressed  by  actions  at  law  or  by  indictments.  Under 
such  conditions,  these  latter  methods  of  redress  would  have  been 
the  appropriate  and  sole  remedies.  But  such  repressions  would 
not  be  adequate  where  the  wrong-doing  proceeds  from  a  concerted 
plan  of  operations,  because,  as  the  remedy  would  be  aimed  at  the 
effects,  and  not  at  the  cause,  the  result  would  be  the  inefficiency, 
with  respect  to  results,  that  in  general  attends  a  great  multiplicity 
of  suits. 

I  have  regarded  these  questions  as  of  considerable  importance, 
and  have,  on  that  account,  preferred  to  express  my  own  views  on 
the  subject ;  and  it  is  in  consequence  of  such  views  that  I  shall 
vote  to  affirm  the  decree  rendered  in  the  court  below. 

Decree  unanimously  affirmed. 


286         COUET  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Emson  v.  Lawrence. 

Ephraim  p.  Emson,  appellant, 

V. 

James  N.  Lawrence  et  al.,  respondents. 


On  appeal  from  a  decree  of  the  chancellor,  reported  in  Law- 
rence V.  Emson,  4-  Stew.  Eq.  67. 

Mr.  Barker  Gummere,  for  appellant. 

Mr,  Fred'k  Kingman,  for  respondents. 

The  opinion  of  the  court  was  delivered  by 

Beasley,  C.  J. 

These  proceedings  are  highly  irregular,  but  both  parties  have 
participated  in  such  informalities.  An  arbitration  and  award 
have  been  decreed  to  be  void,  though  no  issue  has  been  raised 
concerniug  them  in  the  pleadings ;  and  though  one  of  the  parties 
interested  in  such  award  is  not  before  the  court,  and  the  award 
has  been  partly  executed,  this  absent  person,  of  course,  cannot  be 
affected  by  the  decree ;  and  as  the  parties  here  present  have  chosen 
to  try  this  question  as  between  themselves,  I  have  passed  by  all 
matters  relating  to  pleadings  and  procedure. 

With  respect  to  the  merits  I  have  had  some  doubts ;  but  as 
doubt  is  not  a  proper  ground  for  a  reversal  to  rest  on,  I  shall  vote 
to  affirm  the  decree. 

Decree  unanimously  ajirmed. 


6  Stew.]  NOVEMBER  TERM,  1880.  287 

Pillsbury  v.  Kingon. 


Nehemiah  O.  PrLLSBURY,  assignee,  appellant, 

V. 

James  Kingon  and  others,  respondents. 

1.  An  assignee,  under  an  assignment  for  the  benefit  of  the  creditors 
of  the  assignor,  pursuant  to  the  act  entitled  "An  act  to  secure  to  creditors 
an  equal  and  just  division  of  the  estates  of  debtors  who  convey  to  assignees 
for  the  benefit  of  creditors"  {Rev.  36),  may  file  a  bill  to  set  aside  a  prior 
conveyance  of  lands  made  by  the  assignor  for  the  purpose  of  defrauding 
his  creditors,  if  the  property  so  conveyed  is  required  for  the  payment  of  the 
claims  of  creditors,  and  creditors  who  were  intended  to  be  hindered,  delayed 
and  defrauded  by  such  conveyance  have  presented  their  claims  to  the  assignee 
for  allowance. 

2.  Assignees,  under  the  assignment  act,  and  executors  and  administrators  of 
insolvent  estates,  are  the  representatives  of  creditors,  and,  as  such,  may,  for  the 
benefit  of  creditors,  set  aside  conveyances  by  the  assignor  or  the  decedent,  in 
fraud  of  creditors,  to  the  extent  that  such  property  is  needed  for  the  payment 
of  debts. 

3.  Garretson  v.  Brown,  2  Dutch.  4^5,  approved ;  Van  Keuren  v.  McLaughlin, 
6  a  E.  Or.  163,  overruled. 


On  appeal  from  a  decree  of  the  vice-chancellor,  reported  in 
Pillsbury  v.  Kingon,  4-  Stew.  Eq.  619. 

Mr.  Frederick  Adams,  for  appellant,  cited — 

Englehart  v.  Blanjot,  2  Whart.  2JiO,  244- ',  Buehler  v.  Gloninger, 
S  Watts  SS6 ;  Thompson  v.  Dougherty,  12  Serg.  &  Rawle  44B ; 
Moore  v.  Bonnell,  2  Vr.  9^,  95 ;  Vandoren  v.  Todd,  2  Gr.  Ch. 
397;  Knight  v.  Packer,  1  Beas.  217 ;  Scull  v.  Beeves,  2  Gr. 
Ch.  131;  State,  Clark,  pros.,  v.  Grcyoer,  8  Vr.  17 4,  176;  Al- 
paugh  V.  Roherson,  12  C.  E.  Gr.  96 ;  Stewart  v.  Kearney,  6 
Watts  4S5 ;  Pringle  v.  Pringle,  69  Pa.  St.  281 ;  In  re  Estate 
of  Koch,  4  Rawle  268 ;  Miller  v.  Mackenzie,  2  Stew.  Eq.  295 ; 
State,  New  Jersey  R.  R.  and  Trans.  Co.,  pros.,  v.  Hancock,  6 
Vr.  537 ;  Hackettstown  ads.  Swackhamer,  8  Vr.  192 ;  Garretson 
V.  Brown,  2  Dutch,  1^25 ;    Newkirk  v.  Morris,  1  Beas.  62,  65 ; 


288         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Pillsbury  v.  Kingon. 

Wikon  V.  BrovM,  1  Beas.  ^4-^  ;  Matlack  v.  James,  3  Beas.  126  ; 
Van  Keuren  v.  McLaughlin,  6  C.  E.  Gr.  163, 168 ;  Bayard  v. 
Hoffman,  ^  Johns.  Ch.  J/^O ;  Swift  v.  Thomj)Son,  9  Conn.  69 ; 
Sixth  Ward  Building  Association  v.  Wilson,  Jpl  3fd.  506; 
Nichols  V.  Kribs,  10  Wis.  76;  Hays  v.  Doane,  3  Stock.  8 J,.,  88; 
Melville  v.  Mount,  1  Harr.  363;  Hunt  v.  Field,  1  Stock.  36; 
Curry  v.  Glass,  10  C.  E.  Gr.  108 ;  Hasten  v.  Castner,  2  Stew. 
Eq.  636 ;  Shurts  v.  Hoioell,  3  Stew.  Eq.  4£0 ;  Atwell  v.  Reese 
River  Mining  Co.,  L.  R.,  (7  Eq.)  34,6;  Philhower  v.  Todd,  3 
Stock.  312,  315;  Tucker  v.  Mordand,  10  Pet.  64;  Eaton  v. 
Eaton,  8  Vr.  108 ;  Annin  v.  Annin,  9  C,  E.  Gr.  184;  Craw- 
ford V.  Bertholf,  Sax.  4^0 ;  Phillipshurg  Bank  v.  Fulmei^,  2  Vr. 
52 ;  Campbell  v.  Nichols,  4  V^-  ^^  >  JDewees  v.  Manhattan  Ins. 
Co.,  6  Vr.  366. 

Mr.  J.  H.  Ackerman,  for  respondent 

The  opinion  of  the  court  was  delivered  by 

Depue,  J. 

The  complainant  is  the  assignee  of  John  C.  Doremus  and 
William  L.  Doremus.  The  bill  charges  that  on  the  14th  of 
January,  1878,  the' said  John  C.  Doremus  and  William  L.  Dore- 
mus, who  were  partners,  executed  and  delivered  to  the  complain- 

NoTE. — The  following  additional  cases  hold  that  an  assignee  for  the  benefit 
of  creditors  may  set  aside  fraudulent  conveyances  made  by  his  assignor  before 
the  assignment — in  some  states,  however,  the  power  is  statutory :  Kilboume  v. 
Fay,  29  Ohio  St.  264;  Hallowdl  v.  Baylies,  10  Ohio  St.  537;  Gibbs  v.  Thayer, 

6  Gash.  SO;  Blake  v.  Sawin,  10  Allen  340 ;  Freeland  v.  Freeland,  102  Mass. 
415;  Lynde  v.  McGregor,  13  Allen  172;  Waters  v.  Dashidl,  1  Md.  455 ;  Simp- 
son V.  Warren,  55  Me.  IS;  Shipman  v.  ^ina  Ins.  Co.,  29  Conn.  245 ;  Shibley  v. 
Long.  6  Band.  735 ;  Cloiigh  v.  Thompson,  7  Gratt.  26;  Staton  v.  Pittman,  11 
Gratt.  99;  Doyle  v.  Peckham,  9  E.  J.  21;  Southard  v.  Benner,  72  N.  T.  4^4; 
McMahon  v.  Allen,  35  N.  Y.  403;  Monmre  v.  Hanson,  15  Pa.  St.  3S5 ;  Tarns 
V.  Bullitt,  35  Pa.  St.  308;  22  Alb.  L.  J.  60,  81. 

The  following  cases  deny  such  right:  Sere  y.Pitol,  6  Q-aneh  332 ;  Estabrook 
V.  Messersmilh,  18  Wis.  572 ;   Brmming  v.  Sart,  6  Barb.  91 ;   Leach  v.  Kelsey, 

7  Barb.  466;  Maiders  v.  Culvers,  l,Dnv.  164;  Carr  v.  Gale,  3  Woodh.  &.  if. 
68  ;  Flower  v.  Comish,  25  Minn.  47S. 


6  Stew.]  NOVEMBER  TERM,  1880.  289 

Pillsbury  v.  Kingon. 

ant  an  assignment  of  all  their  partnership  and  individual  prop- 
erty, for  the  purpose  of  securing  to  the  creditors  of  the  firm  and 
the  individual  creditors  of  the  assignors  an  equal  distribution 
of  the  partnership  and  separate  property  of  the  assignors,  in  ac- 
cordance with  the  provisions  of  the  act  entitled  "An  act  to  secure 
to  creditors  an  equal  and  just  division  of  the  estates  of  debtors 
who  convey  to  assignees  for  the  benefit  of  creditors,"  Eev.  36. 
It  further  charges  that  the  firm  property  embraced  in  the  inven- 
tory does  not  exceed  in  value  the  sum  of  $895.44,  of  which  more 
than  $700  are  book  accounts,  a  portion  of  which  is  probably  un- 
collectible; that  the  individual  estate  of  William  L.  Doremus  is 
estimated  at  the  sum  of  $654.10,  and  the  individual  estate  of 
John  C.  Doremus  at  the  sum  of  $1,200 ;  that  firm  debts  amount- 
ing to  $4,345.51,  and  individual  debts  of  William  L.  Doremus 
amounting  to  $204.33,  had  been  presented  to  the  complainant, 
and  that  the  estate  in  the  complainant's  hands  and  mentioned  in 
the  inventory  is  insufficient  to  pay  in  full  the  debts  of  the  firm 
presented  to  the  complainant. 

The  bill  further  charges  that  the  said  John  C.  Doremus,  on 
the  16th  of  December,  1877,  was  seized  of  two  tracts  of  land 
situate  in  the  township  of  Montclair,  valued  at  $7,000  above  en- 
cumbrances, and  that  on  that  day  he  conveyed  the  said  lands  to 
his  daughter,  Jane  A.  Kingon,  for  a  pretended  consideration ; 
that  at  the  time  of  the  said  conveyance  the  said  firm  was  hope- 
Such  assignee  may  set  aside  a  mortgage  or  other  conveyance  void  as  to  cred- 
itors, for  want  of  registration  or  other  defects.  Rood  v.  Wdch,  28  Conn.  157  ; 
Hanes  v.  Tiffany,  25  Ohio  St.  649 ;  LelancHs  Case,  10  Blatch.  503;  Barker  v. 
Smith,  12  Bank.  Beg.  4^4  ;  but  see  Williams  v.  Winaor,  12  R.  I.  9 ;  Lockwood  v. 
S levin,  26  Ind.  124 ;  Dorsey  v.  Smithson,  6  Harr.  &  Johns.  61 ;  Van  Heusen  v. 
Radcliff,  17  N.  Y.  580. 

In  some  states,  the  assignee  may  afl^m  such  fraudulent  conveyance,  and 
thereby  estop  creditors  from  impeaching  it.  Butler  v.  Sildreth,  5  Mete.  4^  ; 
Freeland  v.  Freeland,  102  Mass.  477;  but  see  Leiman's  (hse,  32  Md.  225 ; 
Dugan  v.  Vattier,  3  Black/.  245. 

If  the  creditors  bring  suit  to  impeach  the  assignor's  deed,  the  assignee  is  a 

necessary  party.     Jamison  v.  Chesnut,  8  Md.  34;  Swan  v.  Dent,  2  Md.  Ch.  111. 

A  receiver  cannot  recover  dividends  fraudulently  declared  and  paid  by  an 

insolvent  corporation.     Buttenvorth  v.  O'Brien,  39  Barb.  192 ;  see  Lexington 

Ins.  Co.  V.  Page,  17  B.  Mon.  412. 

19 


290         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Pillsbury  v.  Kingon. 


lessly  insolvent,  being  indebted  in  the  sum  of  $12,000,,  whereof 
the  debts  presented  to  the  complainant  were  parcel ;  that  the 
said  conveyance  was  contrived  and  intended  in  fraud  of  creditors, 
and  that  the  grantee  took  the  said  conveyance  with  knowledge 
of  the  insolvency  of  the  grantor,  and  of  the  fraudulent  purpose 
with  which  the  conveyance  was  made. 

The  prayer  in  the  bill  is  that  the  said  fraudulent  conveyance 
may  be  set  aside,  and  that  it  may  be  decreed  that  the  premises  so 
fraudulently  conveyed  away  were  the  property  of  the  said  John 
C.  Doremus  at  the  time  of  the  execution  of  the  said  deed  of  as- 
signment, and  became  equitably  vested  in  the  complainant  under 
the  deed  of  assignment.     To  this  bill  a  demurrer  was  filed. 

Concisely  stated,  the  case  is  this  :  A  conveyance  of  property  by 
an  insolvent  debtor,  in  fraud  of  his  creditors ;  a  subsequent  assign- 
ment by  the  debtor  for  the  benefit  of  creditors,  pursuant  to  the  as- 
signment act,  under  which  creditors  who  were  hindered,  delayed 
and  defrauded  by  the  conveyance,  have  presented  their  claims  for 
allowance,  and  the  property  in  the  hands  of  the  assignee  insuffi- 
cient to  pay  the  claims  of  creditors  in  full,  without  resorting  to 
the  property  previously  conveyed  away  by  the  debtor.  The 
question  on  the  demurrer  is  whether,  under  such  circumstances, 
the  assignee  has  a  standing  in  court  to  set  aside  the  fraudulent 
conveyance,  and  reach  the  property  conveyed  away  by  the  debtor 

The  proceedings  for  the  collection  of  claims  against  the  estates  of  decedents 
are  similar  to  those  against  the  estates  of  voluntary  assignors  {Oifford  v. 
Black,  22  Ind.  444),  and  hence  it  has  been  said  that  an  assignment  by  a  de- 
cedent void  as  to  his  creditors,  leaves  or  vests  the  property  assigned,  as  assets, 
in  the  hands  of  his  executor  or  administrator  {3  Wins,  on  Exrs.  1679;  and 
cases  are  there  cited  from  Mass.,  S.  C,  Tenn.,  N.  H.,  N.  Y.,  Mich.,  La.,  Mo., 
Vt.,  Pa.,  Tex.,  Me.  and  Conn.) ;  but  sucli  right,  in  some  of  the  states  mentioned, 
is  statutory,  and  in  other  states  is  denied.  Dorsey  v.  Smithson,  6  Harr.  & 
Johns.  61 ;  Snodgrass  v.  Andrews,  SO  Miss.  4^2  ;  McLaughlin  v.  McLaughlin,  26 
Mo.  24^;  Brown  v.  Finlcy,  18  Mo.  375;  Merry  v.  Freemon,  44  Mo.  518;  Col- 
traine  v.  Causey,  3  Ired.  Eq.  246 ;  Ordronaux  v.  Helie,  3  Sandf.  Ch.  512 ;  Ben- 
jamin V.  Le  Baron,  15  Ohio  517  ;  Com.  v.  Bichardson,  8  B.  Mon.  93  ;  Crosby  v. 
De  Graffenreid,  19  Qa.  290;  Beak  v.  Hall,  22  Ga.  431;  Choteau  v,  Jrnes,  11 
III.  300;  Beebe  v.  Saulter,  87  III.  518;  King  v.  Clarke,  2  HUl's  Ch.  611;  Winn 
V.  Barnett,  31  3Iiss.  653 ;  Sharp  v.  Caldwell,  7  Humph.  415 ;  Lassiter  v.  Cole,  8 
Humph.  621 ;  Martin  v.  Martin,  1  Vt.  91 ;  Peaslee  v.  Barney,  1  D.  Chip.  331 ; 
Bank  of  U.  S.  v.  Burke,  4  Black/.  I4I;  HUls  v.  Sherwood,  48  Col.  386;  George 


6  Steav.]  NOVEjMBER  TERM,  1880.  291 

Pillsbury  v.  Kingon. 

in  fraud  of  creditors,  for  the  purpose  of  applyiug  it  iu  satisfac- 
tion of  the  claims  of  creditors. 

No  rule  of  law  is  better  settled  than  that  a  conveyance  in  fraud 
of  creditors  is  good  as  between  the  parties  to  it.  The  statute  of 
13  Eliz.  G.  5,  which  makes  void  grants  and  conveyances  con- 
trived in  fraud,  with  intent  to  hinder,  delay  or  defraud  creditors, 
is  in  express  terms  limited  to  those  persons  whose  actions,  debts, 
damages  or  demands  are  or  may  be  hindered  or  defeated  by 
such  covinous  or  fraudulent  devices  and  practices.  Rev.  44-'^ 
§  12.  It  is  equally  clear  that  such  conveyances  are  also  unassail- 
able by  those  who  hold  a  derivative  title  from  the  fraudulent 
grantor,  and,  in  virtue  of  their  title,  become  simply  representa- 
tives of  his  interests.  An  heir  or  devisee  of  the  fraudulent 
grantor  is  exclusively  the  representative  of  the  latter,  and  suc- 
ceeds only  to  his  rights.  In  no  sense  can  the  heir  or  devisee  be 
considered  as  representing  those  whose  interests  are  intended  to 
be  defrauded ;  and  on  the  plain  construction  of  the  statute  he  is 
disabled  from  taking  advantage  of  its  provisions.  The  executor 
or  administrator  of  a  solvent  estate  stands  in  the  same  position. 
As  such,  he  is  also  the  representative  of  the  fraudulent  grantor, 
and  has  no  power  to  recall  a  fraudulent  grant  of  chattels  for  the 
benefit  of  the  grantor's  estate.  The  same  disability  will  rest  upon 
an  assignee,  who,  in  virtue  of  the  instrument  of  transfer,  becomes 
merely  the  representative  of  liis  grantor,  and  succeeds  only  to  the 
rights  of  the  latter. 

The  material  question  for  present  consideration  is,  whether 
those  who  hold  by  a  title  derived  from  the  grantor,  but  who,  in 
virtue  of  that  title,  become  the  representatives  of  the  creditors  of 

V.  Williamson,  26  Mo.  190;  Cobb  v.  Norwood,  11  Tex.  556;  Hunt  v.  Btitter- 
worth,  £1  Tex.  1S3  ;  Hammett  v.  Harrison,  1  Phila.  349) ;  even  where  the  repre- 
sentative alleges  that  he  is  also  a  defrauded  creditor  {Moody  v.  Fry,  3  Humph. 
567 ;  CoUraine  v.  Causey,  3  Led.  Eq.  246)  ;  see  further  Bate  v.  Graham,  11  N. 
Y.  237  ;  Smith  v.  Pollard,  4  B.  Mon.  66;  Cooky  v.  Brovm,  30  Iowa  470;  Badger 
V.  Story,  16  N.  H.  16S. 

But  if  the  fraudulent  grantee  has  been  appointed  executor  or  administrator^ 
equity  may  grant  relief  against  him.  Hampson  v.  Sumner,  IS  Ohio  444; 
Clayton  v.  Tucker,  20  Qa.  452 ;  Doolitile  v.  Bridgeman,  1  Oreene  (loioa)  S65 ; 
Shears  v.  Rogers,  S  Bam.  &  Ad.  362. — Kep 


292         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Pillsbury  v.  Kingon. 

the  grautor,  as  a  class — as,  for  iustauce,  the  executors  or  admin- 
istrators of  an  iusolveut  estate,  or  an  assignee  for  the  benefit  of 
the  grantor's  creditors — may  not  be  allowed,  in  tlie  interest  of 
creditors,  to  have  a  standing  in  court,  to  avoid  the  fraudulent 
grants  and  conveyances  of  the  debtor  for  the  benefit  of  his 
creditors. 

The  leading  case  on  this  subject  is  Hawes  v.  Leader,  Cro.  Jac. 
S70.  In  that  case  the  defendant  was  the  administrator  of  one 
Thomas  Cookson.  The  plaintiff  averred,  in  his  declaration,  that 
the  said  Cookson,  for  £20  paid  by  the  plaintiff,  granted  all  his 
goods  mentioned  in  a  schedule,  and  covenanted  that  he,  his  ad- 
ministrators &c.,  should  safely  keep  and  quietly  deliver  them  to 
the  plaintiff  on  demand,  and  bound  himself  in  £40  for  the  per- 
formance of  that  covenant.  Cookson  died,  and  tlie  plaintiff  de- 
manded the  goods  of  the  defendant,  who  had  become  adminis- 
trator, and  being  refused,  brought  iiis  action.  The  defendant 
j)leaded  the  statute  of  13  Eliz.  c.  5,  and  further  said  that  the  in- 
testate, at  the  time  of  the  grant,  was  indebted  to  divers  persons 
in  several  sums  (naming  both  the  persons  and  the  sums),  and 
that  the  deed  of  gift  was  made  of  fraud  and  covin  betwixt  Cook- 
son and  the  plaintiff  to  deceive  his  creditors  named ;  that  Cook- 
son used  and  occupied  all  the  goods  during  his  life,  and  that  ad- 
ministration, after  his  death,  was  committed  to  the  defendant. 
The  plaintiff  demurred,  and  assigned  as  grounds  of  demurrer,  (1) 
that  it  was  not  averred  that  the  debts  due  were  unpaid  to  the 
creditors  named  ;  (2)  that  the  plea  did  not  show  that  the  said 
debts  were  due  by  specialty,  for  an  administrator  was  not  liable 
to  debts  if  they  be  not  upon  specialty ;  (3)  that  the  goods  were 
liable  to  the  creditors  in  the  plaintiff's  hands,  as  an  executor  de 
son  tort,  if  the  deed  of  gift  be  fraudulent;  (4)  that  creditors 
might  never  sue  for  their  debts,  and  then  the  defendant  might 
thereby  justify  the  detainer  of  the  goods  forever,  and  (5)  that  the 
defendant  was  not  such  a  person  as  is  enabled  by  the  statute  to 
plead  that  plea,  for  the  statute  makes  the  deed  void  as  against 
creditors,  but  not  against  the  party  himself,  his  executor  or  ad- 
ministrator. On  the  argument  of  the  demurrer  it  was  adjudged 
for  the  plaintiff. 


6  Stew.]  NOVEMBER  TERM,  1880.  293 

Pillsbury  v.  Kingon. 

It  will  be  perceived  that,  in  the  case  cited,  the  action  was  at 
law,  and  the  pleading  being  entirely  wanting  in  the  averments 
necessary  to  put  the  interests  of  creditors  in  the  issue,  the  decision 
in  principle  went  no  further  than  holding  that  an  administrator, 
as  such,  cannot  take  advantage  of  the  statute  where  the  rights  of 
creditors  do  not  appear  to  be  involved.  Certain  it  is  that,  by  a 
long  line  of  decisions,  it  has  become  settled  law  that  a  convey- 
ance of  chattels  made  by  a  debtor  in  fraud  of  his  creditors,  is  void, 
and  the  property  conveyed  is  assets  for  the  payment  of  debts.  3 
Wms.  on  Exrs.  1679.  At  common  law,  creditors  might  con- 
sider the  fraudulent  donee  as  an  executor  de  son  tort,  if  he 
took  the  goods  into  his  possession  after  the  death  of  the  donor. 
But  it  was  not  considered  that  the  rights  of  creditors  depended 
altogether  on  that  mode  of  proceeding ;  for  it  was  adjudged  in 
Bethel  v.  Stanhope,  Cro.  JEliz.  810,  that  if  the  gift  of  goods  be  in 
itself  fraudulent,  and  the  covin  is  expressly  found  by  the  jury, 
then  it  is  utterly  void  against  the  creditors  by  the  13  Eliz.  c.  5, 
and  the  intestate  died  possessed  of  them ;  and  when  the  donee 
took  them  it  was  a  trespass  against  the  administrator  for  which 
he  hath  his  remedy,  and  they  were  always  assets  in  his  hands. 
Where  A,  being  indebted  to  B,  made  C  his  executor,  and  died, 
and  C,  the  executor,  promised  B,  on  good  consideration,  that  if 
he  could  discover  any  goods,  parcel  of  the  testator's  estate  at  the 
time  of  his  death,  he  should  have  his  debts  satisfied  thereout, 
and  the  question  was  whether  a  lease  for  years,  conveyed  to  a 
stranger  by  the  testator  in  his  lifetime,  fraudulently,  should,  in 
law,  be  parcel  of  his  estate  at  the  time  of  his  death  or  not,  it  was, 
by  the  whole  court,  resolved  to  be  parcel  of  the  testator's  estate 
at  the  time  of  his  death,  for  the  lease  was  void  against  creditors. 
Anon.,  2  Roll.  173.  Mr.  Roberts,  in  his  treatise  on  Fraudulent 
Conveyances,  says : 

"  Wherever  a  man  makes  a  fraudulent  gift  of  his  goods  and  chattels,  and 
dies  indebted,  the  rule,  upon  the  statute  of  EUz.  c.  5,  has  always  been  to  con- 
strue the  gift  as  utterly  void  against  all  his  creditors,  and  the  debtor  to  have 
died  in  full  possession  with  respect  to  their  claims,  so  that  the  ejects  are  just  as 
much  assets  in  the  hands  of  the  personal  representatives,  as  to  creditors,  as  if 
no  such  attempt  to  alien  them  had  been  made."    Boberta  on  Fratui.  Con.  59S. 


294         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 


Pillsburv  f.  Kinsron. 


In  Shears  v.  Rogers,  3  B.  &  Ad.  362,  the  defendaut  was 
the  person  to  whom  the  lease  had  been  assigned  by  the  testator 
in  his  lifetime,  in  "fraud  of  his  creditors,  and  who  afterwards  be- 
came his  executor;  but  none  of  the  judges  mentioned  the  fact 
that  the  defendant  might  have  been  held  liable  as  executor  de  son 
tort,  except  Pattison,  J. ;  and  Lord  Tenterden,  C.  J.,  puts  his 
decision  on  the  ground  that  "  the  authorities  show  that  whenever 
a  man  makes  a  gift  of  goods  which  is  fraudulent  and  void  as 
against  creditors,  and  dies,  he  is  considered  to  have  died  in  full 
possession,  with  respect  to  the  claims  of  creditors,  and  the  goods 
are  assets  in  the  hands  of  his  executor." 

In  Shears  v.  Rogers  and  Bethel  v.  Stanhope,  the  question 
arose  under  pleas  of  plene  admlnistravit.  The  issue  on  these 
pleas  admitted  that  the  goods  and  chattels  fraudulently  con- 
veyed by  the  deceased  were  needed  to  pay  debts.  In  this 
respect  those  cases  are  distinguishable  from  Hawes  v.  Leader. 
In  Shears  v.  Rogers,  the  lease  had  been  assigned  by  the  testator 
to  the  defendant,  in  trust  for  the  benefit  of  the  testator  during 
his  life,  and  after  his  death  for  the  benefit  of  one  of  the  testator's 
daughters-in-law.  The  defendant,  after  probate  of  the  will,  and 
before  he  had  notice  of  the  plaintiff's  debt,  delivered  the  deed 
of  assignment  to  the  husband  of  the  daughter-in-law.  He  did 
not  deliver  the  key  of  the  leasehold  premises,  but  the  premises 
were  let  by  the  husband  to  a  tenant.  In  Bethel  v.  Stanhope,  the 
testator  made  a  gift  of  his  goods  to  his  daughter  by  covin,  to 
defraud  his  creditors,  and  died.  The  defendaut  intermeddled 
with  the  goods,  and  afterwards  the  daughter,  by  this  gift,  took 
possession  of  the  goods,  and  after  that  the  administration  was 
committed  to  the  defendant  as  executor.  These  cases  affirm  the 
power  of  the  executor,  acting  in  behalf  of  creditors,  under  some 
circumstances,  to  avoid  conveyances  by  a  testator  in  fraud  of 
his  creditors.  In  both  cases  the  goods  so  conveyed  away  were 
held  to  be  assets  in  the  hands  of  the  executor — a  result  which  is 
not  supposable  if  the  executor  had  no  power  to  retain  or  recover 
them,  in  avoidance  of  tlie  conveyance  of  the  testator,  by  setting 
up  the  fact  that  they  were  granted  away  by  the  testator  in  fraud 
of  his  creditors. 


6  Stew.]  NOVEMBER  TERM,  1880.  295 

Pillsbury  v.  Kingon. 

At  common  law,  there  could  be  no  executor  de  son  tort  where 
there  was  a  rightful  executor  or  administrator,  and  it  was  only 
to  give  substantial  effect  to  the  statute  of  Elizabeth  that  a  vol- 
untary donee  of  chattels  was  considered  chargeable  as  an  executor 
de  son  tort,  if  he  took  possession  of  them  after  the  death  of  the 
donor.  Roberts  on  Fraud.  Con.  593.  Such  a  representative  of 
a  deceased  where  there  is  a  rightful  executor  or  administrator,  is 
utterly  out  of  place  in  our  system  of  administration  upon  an 
insolvent  estate  and  the  distribution  of  its  assets  among  cred- 
itors. In  such  a  condition  of  the  estate  of  a  decedent,  the  right- 
ful executor  or  administrator  is  generally  the  representative  in 
fact  of  creditors,  and  of  creditors  only,  and  alone  has  the  capacity 
to  take  the  steps  necessary  under  the  statute  to  effectuate  an  equal 
distribution,  among  the  creditors  of  an  insolvent  estate,  of  the 
assets  which  may  be  made  available  for  the  payment  of  debts. 
If  creditors  should  sue  the  fraudulent  donee,  as  executor  de  son 
tort,  or  should,  by  virtue  of  an  execution  on  a  judgment  against 
the  rightful  executor  or  administrator,  levy  on  the  chattels  so 
granted  away,  priorities  would  be  obtained  contrary  to  the  policy 
of  the  statute  for  the  distribution  of  the  assets  among  the  cred- 
itors. In  Holland  v.  Cruft,  20  Pick.  321,  328,  the  right  of  the 
administrator  of  an  insolvent  estate  to  set  aside  a  conveyance 
made  by  the  intestate  in  fraud  of  creditors,  was  deduced  from 
the  fact  that,  in  such  a  condition  of  the  estate,  the  administra- 
tor is  the  trustee  and  representative  of  creditors,  and,  as  such, 
may  stand  upon  their  rights,  and  assert  claims  which  the  intes- 
tate himself  could  not  have  asserted ;  and  that  deduction  was 
founded  upon  the  proceedings  for  the  settlement  of  insolvent 
estates,  in  which  the  executor  or  administrator  is  regarded,  in  the 
first  instance,  as  the  trustee  and  representative  of  the  creditors, 
and  only  secondarily  the  trustee  for  heirs  or  personal  represen- 
tatives. Though  one  who  parts  with  his  property  for  the 
purpose  of  defrauding  creditors  cannot  recover  it  back,  his  per- 
sonal representatives  may  sue  for  it  for  the  benefit  of  his 
creditors,  if  his  estate  be  insufficient  to  pay  his  debts.  Stewart 
v.  Kearney,  6  Watts  4^3;  Buehler  v.  Gloningo;  2  Id.  226; 
Bomlough  v.  Bouslough,  68  Pa.  St.  ^95,  4-99 ;   Everett  v.  Bead, 


296         COUET  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Pillsbury  v.  Kingon. 

3  N.  H.  55;  Abbott  v.  Tenney,  18  Id.  109;  Cross  v.  Brown, 
51  Id.  4B6;  Fletcher  v.  Holmes,  40  Me.  36^;  McLean  v.  Weeks, 
61  Id.  ^77,  65  Id,  4,11;  see,  also,  Andruss  v.  DooliUle,  11  Conn. 
£83;  Babcock  v.  Booth,  2  Hill  181,  186;  Flagler  v.  Blunt,  5 
tStew.  Eq.  618  ;  and  cases  cited  in  Mr.  Perkins's  note  to  3  Wms. 
on  Exrs.  1782  ^1679']. 

In  a  court  of  law,  in  ordinary  cases,  by  proof  at  the  trial  or 
by  the  production  of  a  decree  of  the  orphans  court,  and  always 
in  a  court  of  equity,  the  condition  of  the  estate  may  be  ascer- 
tained, and,  if  need  be,  a  classification  arrived  at  of  the  creditors 
who  are  and  who  are  not  entitled  to  the  benefit  of  the  statute ; 
and  on  the  settlement  of  the  estate,  the  assets  may  be  so  mar- 
shaled and  administered,  by  withholding  from  heirs,  legatees 
and  next  of  kin  all  advantages  arising  from  the  avoidance  of  the 
acts  of  the  decedent,  as  to  give  effect  to  the  policy  of  the  statute, 
which  denies  to  such  representatives  the  power  to  avail  them- 
selves of  its  provisions  for  setting  aside  the  fraudulent  gi'ants 
and  conveyances  of  the  deceased.  The  cases  on  this  head  in  the 
courts  of  our  sister  states  are  not  in  harmony  ;  but  I  think,  on 
principle  and  good  policy,  the  executor  or  administrator  may  be 
considered  as  the  representative  of  creditors  for  the  purpose  of 
bringing  suits  to  recover  property  fraudulently  conveyed  away 
by  the  deceased,  when  such  property  appears  to  be  required  for 
the  payment  of  his  debts,  and  that  such  property,  when  recov- 
ered, will  be  treated  as  assets,  in  the  hands  of  the  executor  or 
administrator,  only  for  the  purpose  of  paying  debts.  Where  the 
property  so  illegally  disposed  of  consists  of  lands  on  which 
debts  become  liens  by  statute,  and  which  may  be  subjected  to  the 
payment  of  debts  by  a  creditor  filing  a  bill  in  behalf  of  himself 
and  other  creditors  {Haston  v.  Castner,  4  Stew.  Eq.  697),  the 
executor  or  administrator,  before  he  can  put  himself  in  position 
to  give  him  a  standing  for  the  purpose  of  reaching  such  prop- 
erty, must  obtain  an  order  of  the  proper  court  for  the  sale  of 
lauds  for  the  payment  of  debts.  Kingsbury  v.  Wild,  3  N.  H. 
SO  ;  Drinkwater  v.  Brinkwaier,  4  Mass.  354- 

Cases  more  directly  in  point  with  the  case  in  hand  are  those 
decided  under  the  insolvent  acts  of  1  Geo.  IV,  c.  119,  and  7 


6  Stew.]  NOVEMBER  TERM,  1880.  297 

Pillsbury  v.  Kingon. 

Geo.  IV,  c.  57.  In  Butcher  v.  Harrison,  4,  B.  &  Ad.  129,  the 
assignees  of  an  insolvent  under  the  insolvent  act  were  held  to  be 
parties  grieved,  within  the  meaning  of  the  statute  13  Ellz.  c.  5, 
so  as  to  enable  them  to  recover  of  the  insolvent  and  others, 
parties  to  a  fraudulent  conveyance,  the  penalty  given  by  the 
statute;  and  in  Doe,  Grimsby  v.  Ball,  11  M.  &  W.  531,  the 
assignee  of  an  insolvent  was  adjudged  capable  of  recovering  lands 
which  the  insolvent  had  previously  conveyed  away  in  fraud  of 
creditors.  In  both  these  cases,  the  assignee  was  regarded,  for  the 
purposes  of  the  suits,  as  the  representative  of  the  creditors  of 
the  insolvents.     In  the  case  last  cited,  Parke,  B.,  said : 

"I  think  that  the  assignee  of  an  insolvent  debtor  represents  the  creditors 
for  all  purposes,  and  if  any  fraud  exists  in  a  transaction  to  which  the  insolvent 
was  a  party,  that  the  assignee  may  take  advantage  of  it.  A  deed  which  is 
void  as  against  creditors  is  void  also  as  against  those  who  represent  creditors." 

Aldersou,  B.,  also  declared  that  "  if  a  deed  be  void  as  against 
creditors,  the  assignee  who  represents  creditors  may  avoid  it." 
In  Norcutt  v.  Dodd,  1  Cr.  &  Ph.  100,  a  bill  by  an  assignee  in 
insolvency  was  sustained,  the  object  of  which  was  to  set  aside 
a  voluntary  alienation  of  property  of  the  debtor,  who,  at  the 
time  of  such  alienation,  was  insolvent.  In  the  later  case  of 
Holmes  v.  Penney,  3  K.&  J.  90,  the  bill  was  filed  by  the  plaintiff 
as  a  creditor  and  also  as  an  assignee  in  insolvency,  to  impeach  a 
settlement  by  a  debtor  in  fraud  of  creditors;  and  in  considering 
the  question  of  parties.  Vice- Chancellor  Wood  said : 

"  I  have  no  doubt  of  the  right  of  the  assignee  in  insolvency  to  sue  in  this 
case.  In  Doe,  Grimsby  v.  Ball,  Baron  Parke  and  the  present  lord  chancellor 
decided  that  an  assignee  in  insolvency  might  properly  represent  all  the  cred- 
itors in  proceedings  to  set  aside  an  instrument  which  any  of  the  creditors 
might  have  instituted." 

In  the  two  cases  first  cited,  the  assignment  was  made  under 
the  act  of  1  Geo.  IV,  c.  119  ;  in  the  other  two,  under  the  act  of 

7  Geo.  IV,  0.  67.  In  none  of  the  cases  was  the  decision  placed 
on  any  language  in  the  statute  specially  empowering  the  assignee 
to  avoid  the  fraudulent  conveyances  of  the  assignor.     In  fact. 


298         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Pillsbury  v.  Kingon. 

neither  of  those  statutes  contained  any  express  provision  for 
setting  aside  conveyances  of  the  assignor  in  fraud  of  creditors, 
and  that  fact  was  unsuccessfully  pressed  upon  the  attention  of 
the  court  by  the  counsel,  who  argued  against  the  authority  of  the 
assignee  to  exercise  that  power.  The  capacity  of  the  assignee  to 
appear  in  court  for  that  purpose  was  in  express  words,  or  infer- 
entially  adjudged  on  the  ground  that  the  assignee  of  an  insolvent 
was  the  representative  of  creditors,  and,  as  such,  was  entitled  to 
take,  for  their  benefit,  the  same  advantage  of  the  statute  of 
Elizabeth  as  the  creditors  might  have  taken.  This  view  is  con- 
spicuously apparent  in  the  remarks  of  Baron  Parke  during  the 
argument,  and  in  his  judgment  in  Doe,  Grimsby  v.  Bell. 

A  trustee  or  assignee  in  insolvency  has  been  considered  as  the 
representative  of  the  creditors  of  the  debtor,  and,  as  such,  en- 
titled to  avoid,  in  the  interests  of  creditors,  his  grants  and  con- 
veyances made  in  fraud  of  creditors.  Swift  v.  Thompson,  9 
Conn.  63  ;  Palmer  v.  Thayer,  28  Conn.  237 ;  Shipman  v.  ^tna 
Ins.  Co.,  29  Id.  2Ji6;  Moncure  v.  Harrison,  15  Pa.  St.  385. 

In  Bayard  v.  Hoffman,  4-  Johns.  Ch.  JfBO,  Chancellor  Kent 
decided  that  an  assignment  of  all  the  debtor's  estate,  real  and 
personal,  in  trust  for  all  his  creditors,  included  stock  which  the 
debtor  had  before  that  voluntarily  assigned,  to  the  injury  of  his 
creditors,  and  that  the  assignee  might  file  a  bill  to  set  aside  the 
fraudulent  transfer  for  the  benefit  of  the  creditors.  That  case 
has  been  considered  as  overruled  by  the  courts  of  New  York,  in 
Storm  V.  Davenport,  1  Sandf.  Ch.  135,  and  Brownell  v.  Curtis, 
10  Paige  210  ;  but  its  weight  as  the  opinion  of  an  eminent  equity 
judge  is  not  impaired  by  the  overruling  cases.  Storm  v.  Daven- 
port was  rested  on  3Iackie  v.  Cairns,  5  Cow.  51i.7 — a  case 
which  bore  upon  the  question  very  remotely,  if  at  all ;  and  in 
Brownell  v.  Curtis,  Chancellor  Walworth  founds  his  opinion 
chiefly  on  Osborne  v.  Moss,  7  Johns.  161,  which  was  an  action 
at  law  against  an  administrator,  and  in  its  circumstances  identical 
with  Haices  v.  Leader,  already  commented  on. 

An  assignment  under  the  act  of  the  legislature  of  this  state 
differs  in  most  important  particulars  from  an  assignment  made 
by  a  debtor  at  common  law  for  the  benefit  of  his  creditors.     Its 


6  Stew.]  NOVEMBER  TERM,  1880.  299 

Pillsbury  v,  Kingon. 

title  indicates  the  legislative  purpose  to  establish  a  system  for 
securing  an  equal  and  just  division  of  the  estates  of  debtors 
among  their  creditors,  and  that  purpose  is  clearly  evinced  by  the 
provisions  of  the  act.  At  common  law,  a  debtor  might  assign 
tiie  whole  or  a  portion  of  his  property  for  the  benefit  of  all  or  a 
part  of  his  creditors.  By  our  statute,  an  assignment  under  the 
act  transfers  all  the  property  of  the  assignor,  whether  it  be 
described  in  the  inventory  or  not.  In  form,  the  deed  of  assign- 
ment is  in  the  most  general  terms  in  its  description  of  the  prop- 
erty assigned,  and  the  property  of  the  assignor  passes  by  the 
assignment,  though  it  be  not  included  in  the  inventory  annexed 
to  it,  if  it  be  comprehended  within  the  general  terms  of  the 
assignment ;  and  to  be  valid  under  the  act,  the  assignment  must 
be  for  the  equal  benefit  of  all  the  creditors  of  the  assignor,  and 
all  preferences  of  one  creditor  over  another  are  forbidden.  At 
common  law,  an  assignment  by  a  debtor  to  his  trustee  to  pay  his 
debts  might  be  rescinded  by  the  mutual  consent  of  the  debtor 
and  the  trustee,  where  the  creditors  had  not  directed  the  assign- 
ment or  assented  to  it  or  clianged  their  situation  in  consequence 
of  it.  Bill  V.  Oureton,  2  3Iyl.  &  K.  503 ;  Garrard  v.  Lauder- 
dale, 3  Sim.  1 ;  Colyear  v.  Mulgrave,  2  Keen  94-,  note  1.  A 
deed  of  assignment  under  the  statute,  executed,  delivered  and  ac- 
cepted by  the  assignee,  creates,  ipso  facto,  a  trust  for  the  benefit 
of  creditors,  not  to  be  surrendered  or  destroyed  except  by  their 
consent,  and  a  court  of  equity  will  execute  it  by  appointing  new 
trustees,  if  necessary.  Scull  v.  Reeves,  2  Or.  Ch.  84-,  131 ; 
Alpaugh  v.  Roherson,  12  C.  E.  Gr.  96.  Under  such  an  assign- 
ment, the  trustee,  at  common  law,  was  compelled  to  use  the  as- 
signor's name  in  suits  to  recover  the  property,  or  upon  the  choses 
in  action  assigned.  By  the  statute,  the  assignee  may  bring  suit 
in  his  own  name.  At  common  law  the  indebtedness  of  the 
assignor  was  discharged  only  to  the  extent  of  actual  payment  out 
of  the  proceeds  of  the  property  assigned,  unless  otherwise  ex- 
pressly stipulated.  By  the  statute,  the  assignor  obtains  a  full 
release  and  discharge  as  to  all  creditors  who  come  in  under  the 
assignment.  The  entire  proceedings,  under  a  statutory  assign- 
ment, are  regulated  by  the  statute.     The  act  requires  the  deed 


300         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Pillsbury  v.  Kingon. 

of  assignment  to  be  recorded,  and  prescribes  minutely  the  duties 
of  the  assignee.  He  is  to  exliibit  to  the  surrogate  of  the  proper 
county  a  true  inventory  and  valuation  of  the  estate  assigned ; 
give  security  for  the  faithful  performance  of  the  trust ;  give  pub- 
lic notice  of  the  assignment ;  make  report  of  the  claims  of  credit- 
ors ;  make  sale  and  conveyance  of  property ;  present  his  account 
to  be  audited  and  approved  by  the  court ;  and  the  court  may, 
by  citation  and  attachment,  compel  the  assignee  to  proceed  with 
the  execution  of  his  duties  until  a  final  settlement  and  distribu- 
tion shall  be  made.  Creditors  who  come  in  under  the  assi^rn- 
ment  and  exhibit  their  demands  for  a  dividend,  are  barred  of 
their  debts  unless  they  can  prove  fi*aud  on  the  fact  of  the  debtor 
with  respect  to  the  assignment  or  in  concealing  his  estate. 

A  comparison  of  the  statute  with  the  English  insolvent  acts 
will  disclose  the  similarity  of  these  several  acts  in  all  respects 
material  to  this  investigation.  Under  each  system  the  assignee 
derives  his  title  under  an  assignment  which  is  the  voluntary  act 
of  the  debtor.  In  the  one  instance,  he  is  induced  to  make  the 
assignment  by  the  expectation  of  relief  from  imprisonment ;  in 
the  other,  by  the  hope  of  obtaining  a  full  discharge  from  his 
debts.  The  legal  effect  of  the  language  of  the  assignment  is  the 
same  in  both  instances,  except  that  the  position  of  the  debtor, 
in  the  one  case,  raises  a  presumption  that  he  is  at  that  time  un- 
able to  pay  his  debts  in  full,  and  that  part  must  be  made  the 
subject  of  proof  aliunde  in  the  other,  there  is  nothing  in  the 
situation  of  the  assignor,  or  in  the  form  of  the  assignment,  that 
would  make  the  assignee  the  representative  of  creditors  in  one 
instance  and  not  in  the  other.  In  Iloore  v.  BonneU,  2  Vr. 
90,  95,  the  chief-justice  said : 

"It  is  difficult  to  perceive  how  an  assignment,  voluntarily  made  by  a  debtor 
for  the  benefit  of  his  creditor,  difl'ers  in  substance  from  one  executed  nnder  the 
compulsion  of  an  insolvent  or  bankrupt  law.  *  *  *  There  is  to  my  mind 
scarcely  a  shade  of  difference  between  the  coercion  of  circumstames  impelling 
a  failing  debtor  to  wind  up  his  affairs,  and  that  liquidation  brought  about  by 
a  creditor  taking  the  initiative  and  proceeding  against  him." 

Regarding  the  substantial  nature  of  tlie  transaction,  the  doctrine 


6  Stew.]  XOVEMBER  TERM,  1880.  301 

Pillsburv  v.  Kingou. 

of  the  English  courts,  with  respect  to  the  representative  character 
of  the  assignee  of  an  insolvent,  may  very  properly  be  applied  in 
favor  of  an  assignee  under  the  assignment  act,  and  the  latter  be 
regarded  as  representing  creditors  so  far  as  to  enable  him  to  take 
proceedings  in  their  behalf,  to  set  aside  conveyances  in  fraud  of 
creditors,  where  such  property  is  needed  for  the  payment  of  debts. 
Much  of  the  argument  against  the  power  of  the  assignee  to 
prosecute  suits  in  that  behalf  for  that  purpose,  was  based  on  the 
thirteenth  and  twenty-first  sections  of  the  act.  I  am  not  disposed 
to  give  as  much  effect  to  these  sections  as  was  given  to  them  in 
the  court  below.  The  thirteenth  section  gives  the  assignee  the 
same  power  to  dispose  of  the  estate,  real  and  personal,  assigned, 
as  the  debtor  had  at  the  time  of  the  assignment,  with  power  to 
settle  and  compound  with  any  person  concerning  the  same,  to 
redeem  mortgages  and  conditional  contracts,  and  generally  to  do 
whatsoever  the  debtor  might  lawfully  do  in  the  premises.  It 
further  authorizes  the  assignee  to  sue  for  and  recover  in  his  own 
name  everything  belonging  or  appertaining  to  the  said  estate, 
real  and  personal,  of  the  said  debtor — language  which,  in  view 
of  the  purposes  of  the  act,  may  legitimately  be  construed  to  em- 
brace all  property  which  may  be  made  available  for  the  payment 
of  debts.  Considering  that  the  assignment  creates  a  trust  for  the 
benefit  of  all  the  creditors  of  the  assignor,  and  that  the  legislative 
purpose  was  to  secure  an  equal  and  just  division  of  the  estate  of 
the  debtor  among  his  creditors,  a  construction  less  comprehensive 
will  defeat  the  legislative  purpose.  In  virtue  of  the  trust  so 
created  the  assignee  becomes  the  representative  of  and  actor  for 
creditors,  and  bis  powers  should  be  so  construed  as  to  enable  him 
to  carry  into  full  effect  the  purpose  which  the  statute  designed. 
In  the  English  insolvent  acts,  under  whicii  assignees  are  allowed 
to  avoid  the  fraudulent  grants  and  conveyances  of  the  debtor,  the 
power  of  the  assignee  to  sue  in  his  own  name  is  granted  "  for  the 
recovery,  obtaining  and  enforcing  any  estate,  effects  or  rights  of 
such  prisoner  " — language,  in  legal  effect,  identical  with  that  con- 
tained in  the  thirteenth  section  of  our  assignment  act.  In  Gar- 
retson  v.  Brown,  2  Dutch.  Ifio,  Justice  Potts  construed  this 
section  as  enabling  the  assignee  to  sue  for  property  fraudulently 


302         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Pillsbury  v.  Kingon. 

conveyed  away  by  the  debtor,  and  to  recover  it  for  the  use  of  the 
creditors  who  should  present  their  claims. 

The  twenty-first  section  creates  a  bar  of  subsequent  suits  as 
against  creditors  who  have  come  in  under  the  assignment,  liable 
to  be  removed  only  by  proof  of  fraud  in  the  debtor  "with 
respect  to  the  said  assignment,  or  in  (concealing  his  estate,  real  or 
personal,  whether  in  possession,  held  in  trust,  or  otherwise." 
This  language  manifestly  has  reference  to  the  conduct  of  the 
debtor  in  connection  with  his  assignment,  and  has  no  relevancy 
to  prior  conveyances  in  fraud  of  creditors,  unless  such  property 
might  be  made  available  to  creditors  under  the  assignment ;  for 
it  is  not  to  be  supposed  that  the  legislature  would  visit  on  the 
debtor  the  penalty  of  a  forfeiture  of  his  discharge  for  not  dis- 
closing to  his  assignee  property  which  the  assignee  had  no 
capacity  to  take  under  the  assignment.  The  paragraph  in  this 
section  which  saves  the  rights  of  creditors  who  do  not  choose  to 
exhibit  their  claims,  as  to  the  property,  real  or  personal,  not 
assigned,  carries  with  it  an  implication  that  there  might  be  prop- 
erty which  would  not  pass  under  the  assignment ;  but  I  do  not 
think  that  this  expression  should  be  allowed  to  overcome  the 
unmistakable  evidence  on  the  face  of  the  statute,  that  the  assign- 
ment should  embrace  all  the  property  of  the  debtor,  and  that 
creditors  should  be  placed  on  the  footing  of  perfect  equality  in 
the  division  of  the  debtor's  property,  or  that  it  was  intended  to 
give  creditors  who  stayed  out  an  advantage  over  those  who  came 
in  under  the  assignment. 

Nor  will  any  embarrassment  be  experienced  in  the  fact  that 
the  property  which  has  fraudulently  been  conveyed  away  may 
be  in  excess  of  what  is  required  for  the  payment  of  debts.  As 
is  indicated  in  the  opinion  of  this  court  in  Miller  v.  3Iachenzie,  2 
Stew.  Eq.  S91,  such  fraudulent  conveyances  will  be  set  aside  no 
further  than  is  necessary  for  the  satisfaction  of  the  demands  of 
creditors,  and  the  surplus,  if  there  be  any,  will  not  be  restored 
to  the  fraudulent  debtor,  but  will  be  returned  to  the  grantee  to 
whom  the  fraudulent  conveyance  was  made. 

Tn  Garrdson  v.  Brown,  Justice  Potts,  in  delivering  the 
opinion  of  the  court,  held  that  the  assignee  might  sue  for  and 


6  Stew.]  NOVEMBER  TERM,  1880.  303 

Conover  v.  Ruckman. 

recover  for  the  use  of  creditors,  property  which  the  debtor  had 
fraudulently  conveyed  away.  These  views  were  not  expressed 
upon  the  precise  point  in  issue  in  the  case.  But  the  case  turned 
entirely  on  the  eifect  of  the  prior  fraudulent  conveyances  of  the 
debtor  upon  the  validity  of  the  assignment,  and  it  is  highly 
probable  that  the  powers  of  assignees  over  such  fraudulent  con- 
veyances entered  into  the  discussions  of  the  able  counsel  who 
appeared  in  the  case,  and  received  a  careful  consideration  by  the 
court.  The  decision  of  the  supreme  court  was  affirmed  in  this 
court ;  but  the  opinion  here,  if  any  was  delivered,  is  not  reported. 
3  Dutch.  644-.  In  Van  Keuren  v.  McLaughlin,  6  C.  E.  Gr.  163, 
Chancellor  Zabriskie  adopted  a  different  view,  and  without 
referring  to  Garretson  v.  Browii,  held  that  the  assignee  could 
not  maintain  a  suit  to  avoid  a  fraudulent  conveyance  of  the 
assignor ;  that  a  deed,  though  void  as  against  creditors,  was  valid 
as  against  the  assignee.  We  think,  that  the  views  of  Mr.  Jus- 
tice Potts  with  respect  to  the  rights  of  an  assignee  under  the  act 
were  correct,  and  that  Van  Keuren  v.  McLaughlin  should  be 
overruled. 

Decree  unanimously  reversed. 


"William  W.  Conover 

V. 

Maegaeet  Ruckman. 


1.  If  the  equity  judge  has  allowed  an  interlocutory  injunction,  which  after- 
wards clearly  appears  to  him  to  have  been  improperly  allowed,  he  may,  of  his 
own  motion,  set  it  aside  at  any  time  without  any  notice  having  been  given  of 
an  application  to  dissolve.  The  statute,  requiring  eight  days'  previous  notice 
of  a  motion  to  dissolve  an  injunction,  has  reference  to  applications  to  dissolve 
made  by  a  party.  But,  on  appeal  from  an  order  of  dissolution,  made  under 
such  circumstances,  the  appellate  court  will  consider  only  the  reasons  assigned 
in  the  court  below,  for  its  judicial  action. 

2.  Moneys  in  the  hands  of  a  sheriff,  raised  by  him  in  pursuance  of  a  decree 
of  the  court  of  chancery,  are  liable  to  seizure,  by  virtue  of  a  writ  of  attachment. 


304         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Conover  v.  Kuckman. 

3.  Crane  v.  Freese,  1  Harr.  305,  and  Davis  v.  Mahany,  9  Vr.  IO4,  approved ; 
Shinn  V.  Zimmerman,  S  Zah.  150,  and  HiU  v.  Beach,  1  Beas.  SI,  explained. 


On  appeal  from  a  decree  of  the  vice-chancellor,  reported  in 
Conover  v.  Ruckman,  6  Stew.  Eq.  685. 

Mr.  Chilion  Mobbins,  for  appellant. 

The  appeal  in  this  case  raises  two  questions : 

1.  Whether  money  due  on  a  decree  of  the  court  of  chancery, 
or  about  to  be  paid  to,  or  paid  to  a  sheriff  on  an  execution  in  his 
hands  to  raise  money,  issued  out  of  the  court  of  chancery,  is  the 
subject  matter  of  attachment,  and  can  be  attached  as  a  right  and 
credit  of  the  defendant  in  attachment. 

2.  Whether  an  injunction  can  be  dissolved  without  notice,  and 
upon  motion  to  dismiss  the  Ijill  for  want  of  equity. 

Upon  the  first  question : 

It  is  abundantly  established  that  an  attaching  creditor  has 
such  a  lien  as  will  enable  him  to  set  aside  fraudulent  conveyances 
or  judgments  affecting  the  property  attached.  Hunt  v.  Field,  1 
Stock.  Jf.6 ;  Williams  v.  3Iichenor,  Id.  520 ;  Oakly  v.  Pound,  1 
McCart.  180;  Robert  v.  Hodges,  1  C.  E.  Gr.  S99 ;  Curry  v. 
Glass,  10  C.  E.  Gr.  108;  Rev.  ^  %%  1  3 ;  p.  U  §§  16 y 
17 ;  Shinn  v.  Zimmerman,  3  Zab.  150;  Crane  v.  Freese,  1 
Harr.  4-05 ;  Davis  v.  Mahany,  9  Vr.  lOIf.;  HiE  v.  Beach,  1 
Beas.  J1.7  ;  Turner  v.  Fendall,  1  Cranch  116  ;  Armistead  v.  Phil- 
pot,  1  Doug.  231;  Maxwell  v.  McGee,  1  Cush.  137. 

Upon  the  second  question : 

The  rule  is  plain,  that  "  notices  of  motions  to  dissolve  injunc- 
tions shall  be  served  eight  days."  Rule  IJfi.  And  so  is  the 
statute,  "that  neither  a  motion  to  dissolve  an  injunction,  nor  any 
other  special  motion,  shall  be  heard  unless  eight  days'  notice 
exclusive  of  Sunday,  and  the  day  of  service  shall  have  been 
given,  &c."     Rev.  120  §  86. 

No  notice  was  given  of  a  motion  to  dissolve  the  injunction  in 
this  case.  Without  such  notice  and  motion,  the  action  of  the 
vice-chancellor  was  not  warranted.     Manhattan  Manfg.  and  Fer- 


6  Stew.]  NOVEMBER  TERM,  1880.  305 

Conover  v.  Euckman. 

iilizing  Co.  v.   Van  Keurin,  8  C.  E.  Gh\  S51 ;  3  Dan.  Ch.  Pr. 
1786. 

"No  motion  to  dissolve  an  injunction  before  answer  shall  be 
entertained,  except  on  the  ground  of  want  of  equity  in  the  bill." 
Rule  1S2. 

Mr.  Jacob  Weart,  for  respondent. 

The  money  due  on  this  decree  and  execution  in  favor  of  the 
respondent,  cannot  be  attached  as  the  property  of  Elisha  Ruck- 
man,  who  was  not  a  party  to  the  suit  either  as  complainant  or 
defendant  in  the  court  of  chancery,  which  court  ordered  the 
money  to  be  raised  for  the  respondent.  Conner  v.  Weber,  12 
Hun  580;  Thurber  v.  Blanch,  50  N.  Y.  80. 

Money  due  on  a  decree  of  the  court,  is  not  a  subject  matter  of 
attachment,  and  an  attachment  served  upon  money  due  on  a 
decree  and  raised  by  execution  is  void.  Black  v.  Black,  5  Stew. 
Eq.  75 ;  Shinn  v.  Zimmerman,  3  Zab.  150 ;  Maxwell  v.  Mc  Gee, 
12  Cush.  137 ;  Hill  v.  Beach,  1  Beas.  J^7 ;  Crane  v.  Freese,  1 
Harr.  305 ;  Davis  v.  Mahany,  9  Vr.  104- ;  Turner  v.  Fen- 
dall,  1  Cranch  116  ;  Ross  v.  Clark,  1  Dall.  354- ;  Thompson  v. 
Brown,  17  Pick  462;  Drake  on  Attachments  §§  251,  505,  506; 
Sir  John  Parrott's  Case,  Cro.  Eliz.  63 ;  Kerr  v.  Bower,  Cro. 
Eliz.  186  ;  Voorhees  v.  Sessions,  34  Mich.  99  ;  Lightner  v.  Sieina- 
gle,  33  III.  515  ;  Reddick  v.  Smith,  3  Scam.  4^1 ;  Wilder  v.  Bailey, 
3  Mass.  289;  Dawsm  v.  Holcomb,  1  Ohio  275;  Morin  v.  Haw- 
ley,  9  Mo.  382. 

The  general  rule  is,  that  a  creditor  at  large  has  no  standing  in 
a  court  of  equity  by  a  creditor's  bill  until  he  has  a  lien  at  law  by 
judgment,  and  has  issued  an  execution  and  had  it  returned 
unsatisfied.  This  principle  is  so  general  that  no  citation  of 
authority  is  required  to  support  it. 

In  this  state  there  is  a  class  of  cases  holding  that  a  creditor 
by  attachment  may  acquire  such  a  lien  by  attachment  as  to  sup- 
port a  creditor's  bill.  Hunt  v.  Field,  1  Stock.  36;  Williams  v. 
Michenor,  3  Stock.  520 ;  Robert  v.  Hodges,  1  C.  E.  Gr.  299; 
Miller  V.  Jamison,  9  C.  E.  Gr.  4^,  H   C.  E.  Gr.  404;   Carry 

20 


306         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Conover  v.  Euckman. 

V.  Glass,  10  C.  E.  G-r.  108;  Thurber  v.  Blanch  et  al,  50  N.  Y. 
80 ;  Mechanics  and  Traders  Bank  of  Jersey  City  v.  Dakin,  61 
N.  Y.  519. 

The  injunction  should  also  have  been  dissolved  for  want  of 
equity  in  the  bill.    Austin  v.  Brovm,  1  Harr.  £68. 

The  opinion  of  the  court  was  delivered  by 

Depue,  J. 

Margaret  Ruckman  obtained  a  decree  in  a  foreclosure  suit, 
wherein  she  was  complainant,  and  John  Dorn  and  his  wife  were 
defendants.  Her  bill  was  filed  to  foreclose  a  mortgage,  made  to 
her  by  Dorn  and  wife.  Upon  the  decree,  execution  was  issued, 
directed  to  the  sheriff  of  the  county  of  Monmouth.  The  sheriff 
had  advertised,  and  was  about  to  sell  the  mortgaged  premises,  to 
raise  the  money  due  on  the  decree.  Conover  sued  out  of  the  court 
of  common  pleas  of  the  county  of  Monmouth  a  writ  of  attach- 
ment against  Elisha  Ruckman,  as  a  non-resident  debtor.  The 
writ  was  directed  to  the  coroners  of  the  county,  and  was  served 
on  the  sheriff  with  a  view  of  attaching  the  money  due  upon  the 
decree  as  the  property  of  Elisha  Ruckman. 

In  this  condition  of  affairs,  Conover  filed  a  creditor's  bill 
against  Elisha  Ruckman,  Margaret  Ruckman,  and  the  sheriff, 
charging  that  the  money  for  which  the  said  mortgage  was  given, 
was  the  money  of  Elisha  Ruckman,  and  that  the  mortgage  was 
taken  in  the  name  of  Margaret  Ruckman  for  the  purpose  of  cov- 
ering up  and  concealing  the  property  of  Elisha  Ruckman,  with 
the  intent  to  defraud  his  creditors.  On  filing  this  bill,  duly 
verified,  an  injuction  was  granted,  enjoining  the  sheriff  from  pay- 
ing any  money  raised,  or  which  might  be  raised,  on  the  said 
execution,  to  the  said  Margaret  Ruckman,  or  any  other  person, 
except  to  pay  it  into  the  court  of  chancery.  A  motion  was  made 
to  dismiss  the  bill,  on  notice,  and  without  any  answer  being  filed^ 
for  want  of  equity  in  the  bill.  The  motion  to  dismiss  was  denied, 
but  the  vice-chancellor,  of  his  own  motion,  dissolved  the  injuuo- 
tioD. 


6  Stew.]  NOVEMBER  TERM,  1880.  307 

Conover  v.  Kuckman. 

The  appellant  assigned,  as  one  reason  for  reversal,  that  the 
order  dissolving  the  injunction  was  irregular,  in  that  it  was  made 
without  the  eight  days'  notice  of  a  motion  to  dissolve,  prescribed 
by  the  eighty-sixth  section  of  the  chancery  act.  Bev.  120.  This 
reason  cannot  prevail.  If  tiie  equity  judge  has  allowed  an  inter- 
locutory injunction  which  afterwards  clearly  appears  to  him  to 
have  been  improperly  allowed,  he  may,  of  his  own  motion,  recall 
it  at  any  time.  Inasmuch  as  it  was  in  his  discretion,  in  the  first 
instance,  to  refuse  the  injunction,  he  may,  in  his  discretion,  set 
aside  the  allowance  of  it  if  he  is  satisfied  that  it  should  not  have 
been  allowed.  The  section  referred  to  has  reference  to  appli- 
cations to  dissolve  made  by  a  party.  But  on  appeal  from  an 
order  of  dissolution,  made  under  such  circumstances,  the  appel- 
late court  will  consider  only  the  reasons  assigned  .in  the  court 
below  for  its  judicial  action. 

The  vice-chancellor  vacated  the  injunction  in  this  instance,  on 
the  ground  that  moneys  in  the  hands  of  a  sheriff,  raised  by  him 
in  pursuance  of  a  decree  of  the  court  of  chancery,  are  not  liable 
to  seizure  by  process  of  attachment,  and  that  the  plaintiff  in  the 
attachment  suit,  by  the  service  of  the  writ  on  the  officer,  acquired 
no  rights  in  or  Hen  upon  the  moneys,  and  consequently  had  no 
case  which  would  give  him  a  standing  entitling  him  to  the 
assistance  of  the  court. 

In  Crane  v.  Freese,  1  Harr.  305,  the  effect  of  the  service  of  a 
writ  of  attachment  on  moneys  in  the  hands  of  an  officer,  which 
he  had  raised  by  process  of  execution,  was  adjudicated  upon  by 
the  supreme  court.  Freese  was  the  sheriff  of  the  county  of 
Warren,  to  whom  an  execution  had  been  issued  out  of  the  court 
of  common  pleas  in  favor  of  Aymar,  against  one  Swayze.  Crane 
sued  out  of  the  supreme  court  a  writ  of  attachment  against 
Aymar  as  a  non-resident  debtor.  The  writ  of  attachment  was 
delivered  to  Freese  as  sheriff,  and  was  returned  by  hira  with  a 
certificate  that  he  had,  by  virtue  of  that  process,  attached  all  the 
goods*  and  chattels,  rights  and  credits,  of  the  defendant  in  attach- 
ment, viz.,  money  in  his  own  hands,  collected  by  him  as  sheriff  on 
an  execution  in  favor  of  the  defendant  in  attachment,  against 
Swayze.     The  case  was  submitted  to  the  supreme  court,  on  a 


308         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Conover  v,  Kuckman. 

state  of  the  case  agreed  on,  for  its  opinion  thereon.  The  court 
held  that  the  money  in  the  sheriff's  hands  could  not  be  attached 
as  the  money  of  the  plaintiff  in  the  execution,  for  the  reason  that 
it  could  not  become  his  money  until  it  was  paid  over  to  him,  or 
in  some  other  way  designated  as  his,  or  appropriated  exclusively 
to  his  use.  But  the  court  also  adjudged  that  the  writ  of  attach- 
ment was  well  served  on  the  moneys  due  the  plaintiff  in  the 
execution  and  in  the  sheriff's  hands,  as  rights  and  credits  of  the 
defendant  in  attachment  in  tlie  hands  of  the  sheriff;  and  the 
duty  of  the  officer,  in  that  event,  was  pointed  out.  He  was  to 
obey  the  command  of  the  writ  of  execution  under  which  he 
raised  the  money — bring  the  money  into  the  court  out  of  which 
the  execution  issued,  and  gire  notice  to  the  plaintiff  in  the 
attachment,  or  to  the  creditors,  that  he  had  done  so;  and  the 
court  would  then  control  the  application  of  the  funds,  and  pro- 
tect its  officer  in  the  discharge  of  his  duty. 

It  will  be  perceived  that  in  the  case  referred  to,  the  processes 
were  out  of  different  courts — the  writ  of  execution  being  issued 
out  of  the  court  of  common  pleas,  and  the  writ  of  attachment 
out  of  the  supreme  court.  The  court  was  of  opinion  that 
moneys  in  the  sheriff's  hands,  collected  by  him  by  execution, 
were  rights  and  credits  of  the  plaintiff  in  the  execution  within 
the  meaning  of  the  attachment  act,  and  were  subject  to  seizure  as 
suph  by  virtue  of  a  writ  of  attachment  against  the  plaintiff  in 
the  execution.  Money  received  by  an  officer  under  process  of 
execution  may  be  collected  of  him  by  action  at  the  suit  of  the 
plaintiff  in  execution  [Sewell  on  Shffs.  4^6 ;  Dale  v.  Birch,  3 
Camp.  34-7),  and  come  within  the  legal  definition  of  rights  and 
credits  as  much  as  debts  due  from  private  individuals.  The 
court  expressly  held  that  such  moneys  were  liable  to  seizure  by 
virtue  of  a  writ  of  attachment  against  the  plaintiff  in  the  execu- 
tion, as  rights  and  credits  belonging  to  him,  and  that  the  court 
would  give  effect  to  the  service  of  the  writ  of  attachment  on  the 
officer  with  respect  to  such  moneys  in  such  a  manner  as  not  to 
involve  a  disobedience  by  him  of  the  command  of  the  writ 
under  which  the  money  was  raised.  The  writ  of  scire  facias 
issued  against  the  sheriff  as  garnishee  was  dismissed,  for  the 


G  Stew.]  IsOVEMBER  TERM,  1880.  309 

Conover  v.  Ruckman. 

reason  that  it  would  lead  to  embarrassment  and  confusion  to 
permit  one  process  of  the  court  to  intercept  moneys  raised  on 
another  while  in  the  hands  of  the  officer;  but  it  was  ordered 
that  the  sheriiF  should  bring  the  moneys  into  court,  to  be  paid 
over  to  the  creditors  in  attachment,  if  no  claim  to  them  para- 
mount to  the  title  of  the  plaintiff  in  the  execution  should  be 
interposed. 

Orane  v.  Freese  has  never  been  overruled,  or  doubted,  or 
called  in  question,  in  any  adjudication  in  the  courts  of  this  state. 
It  has  been  cited  without  any  expression  of  dissent  from  its  con- 
clusions, and  was  directly  approved  and  followed  in  the  recent 
case  of  Davis  v.  Mahany,  9  Vr.  lOI),. 

The  mode  of  procedure  adopted  in  Crane  v.  Freese  has  gener- 
ally been  regarded  as  the  settled  practice  in  this  state,  and  haa 
been  quite  uniformly  followed  in  similar  cases.  The  vice-chan- 
cellor, conceiving  that  the  decisions  of  the  supreme  court  on  this 
question  were  conflicting,  felt  bound,  in  making  the  order  appealed 
from,  by  what  he  considered  to  be  the  course  of  decision  in  the 
court  of  chancery. 

An  examination  of  the  decisions  of  the  courts  of  this  state  on 
this  subject  will  not  disclose  any  disagreement  with  Orane  v.  Freese 
in  this  particular. 

In  Shinn  v.  Zimmerman,  3  Zah.  160,  the  attachment  was  is- 
sued against  the  plaintiff  in  a  judgment  recovered  in  the  courts 
of  Pennsylvania,  and  was  served  on  the  defendant  in  that  judg- 
ment. The  question  for  decision  was  stated  by  Chief-Justice 
Green  to  be  "whether  a  judgment  recovered  in  another  state  can 
be  attached  under  the  law  of  this  state  for  the  relief  of  creditors 
against  absent  or  absconding  debtors,"  The  jurisdiction  within 
which  the  judgment  was  recovered,  and  the  person  on  whom  the 
writ  of  attachment  was  served,  distinguish  this  case  from  Orane 
V.  Freese.  The  situation  of  the  parties  was  such  that  the  course 
of  procedure  adopted  in  that  case  could  not  be  followed.  The 
defendant  in  the  attachment  had  recovered  his  judgment  in  an- 
other jurisdiction,  and,  as  the  chief-justice  said,  there  is  "no  rule 
of  law,  no  consideration  of  policy  or  courtesy,  which  would  or 
ought  to  induce  any  court  of  Pennsylvania  to  suspend  its  process 


310         COURT  OF  ERRORS  AXD  APPEALS.  [33  Eq. 

Conover  v.  Riickman. 

and  to  withhold  from  one  of  its  own  citizens  the  recovery  of  a 
debt  adjudged  to  be  due,  because  after  the  recovery  of  the  judg- 
ment, the  debt  has  been  attached  under  the  process  of  this 
state."  He  further  remarked  that  "  it  was  obvious,  moreover, 
that,  if  executions  may  thus  be  arrested,  it  would,  with  respect  to 
judgments  in  this  state,  as  well  as  elsewhere,  present  a  ready 
mode  of  embarrassing  the  administration  of  justice  and  delaying 
the  process  of  the  courts." 

The  views  expressed  by  Chief- Justice  Green  in  Shinn  v.  Zim- 
vierman  are  not  inconsistent  with  those  expressed  by  Chief- 
Justice  Hornblower  in  Oram  v.  Freese.  They  are,  in  effect,  the 
same  as  induced  the  court  in  the  latter  case  to  deny  the  power  of 
the  attaching  creditor  to  have  the  attachment  levied  on  moneys 
in  the  officer's  hands,  to  be  recovered  of  him  by  proceedings  on 
scire  facias — the  embarrassment  and  confusion  which  would  arise 
from  permitting  one  process  of  the  court  to  intercept  moneys  raised 
on  another  while  in  the  hands  of  an  officer — a  difficulty  which  was 
obviated  by  the  mode  of  procedure  at  that  time  adopted.  In 
Black  V.  Black,  5  Stew.  Eq.  74-,  the  writ  of  attachment  was  served 
on  the  defendant  in  a  chancery  suit,  against  whom  there  was  a 
money  decree  in  favor  of  the  defendant  in  the  attachment  suit. 
Service  of  the  writ  in  that  manner  directly  interfered  with  the 
power  of  the  court  of  chancery  to  carry  into  effect  one  of  its  own 
decrees,  and  the  service  was  declared  inefficacious.  In  Hill  v. 
Beach,  1  Beas.  31,  lands  held  in  trust  for  a  firm  were  sold  under 
a  mortgage,  and  the  attachment  was  served  upon  the  surplus 
money  remaining  in  the  hands  of  the  sheriff  after  he  had  paid 
over  to  the  complainant  in  the  decree  the  amount  due  him,  and 
which  the  sheriff  was  ordered  by  his  writ  to  bring  into  court. 
The  chancellor  held  that  this  money  might  be  attached,  and  pro- 
tected the  Hen  which  was  thus  acquired.  In  his  opinion,  the 
chancellor  observes  that  the  case  in  hand  was  unlike  a  case  in 
which  money  was  paid  into  court  under  a  decree  or  judgment,  and 
by  that  decree  decided  to  belong  to  a  particular  individual ;  but 
that  observation  was  made  with  a  view  to  distinguish  thatcase  from 
Shinn  v.  Zimmerman.  The  question  whether  money  adjudged 
to  be  due  to  the  defendant  in  the  attachment,  by  a  judgment  or 


6  Stew.]  NOVEMBER  TERM,  1880.  311 

Conover  v,  Euckman, 

decree,  was  liable  to  seizure  under  an  attachment  against  him,  was 
not  before  the  court. 

The  practice  established  in  Crane  v.  Freese  has  been  followed 
too  long  to  be  disturbed.  It  is  a  practice  which  is  in  furtherance 
of  the  policy  of  the  attachment  act,  which  the  legislature  has  de- 
clared "shall  be  construed  in  all  courts  of  judicature  in  the  most 
liberal  manner  for  the  detection  of  fraud,  the  advancement  of 
justice,  and  the  benefit  of  creditors "  (-Reu.  55  §  75),  and 
effectually  guards  against  embarrassments  arising  from  conflict- 
ing or  opposing  jurisdictions.  The  opinion  of  Mr.  Justice  Scud- 
der  on  this  topic  in  Davis  v.  Mahany  is  so  full  and  exhaustive 
that  it  is  only  necessary  to  refer  to  it,  and  to  express  our  concur- 
rence in  his  reasoning,  and  in  the  conclusion  he  arrived  at. 

We  think  this  practice  should  be  applied  to  the  service  of 
writs  of  attachment  on  moneys  raised  under  decrees  in  chancery, 
and  in  the  hands  of  officers  by  virtue  of  executions  issued  thereon. 
Between  a  decree  in  chancery  and  a  judgment  of  a  court  of  law 
there  is  no  material  difference  in  the  nature  of  the  adjudication. 
In  each  a  court  has  adjudged  that  the  money  found  to  be  due  is 
due  and  payable  to  the  successful  party.  Nor  do  the  executions 
thereon  differ  in  any  important  particular.  By  the  execution  on  a 
decree,  the  sheriff  is  commanded  to  make  the  money  by  the  sale 
of  the  mortgaged  premises,  or  in  some  manner  otherwise  desig- 
nated, and  pay  it  over  to  the  complainant  or  his  solicitor ;  the 
execution  on  a  judgment  at  law  commands  the  sheriff  to  make 
the  money  recovered  by  the  sale  of  the  property  of  the  defend- 
ant, and  to  have  it  in  court  on  the  return  day  to  render  to  the 
plaintiff.  Service  of  a  writ  of  attachment  on  the  sheriff  having 
the  money  in  hand  will  have  no  greater  tendency  to  create  em- 
barrassments, or  interfere  with  the  proceedings  of  the  court  in 
one  case  than  in  the  other.  Under  the  course  of  practice  pursued 
in  Crane  v.  Freese,  the  money  will  be  paid  into  the  court  by 
virtue  of  whose  process  it  was  raised,  to  be  withdrawn  only  by 
the  order  or  decree  of  that  court.  The  injunction  order  in  this 
case,  in  effect,  merely  required  the  money  to  be  paid  into  the 
court  of  chancery,  to  be  disposed  of  as  that  court  might  direct. 
The  only  difference  in  the  situation  of  affairs  in  Crane  v.  Freese 


312         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Conover  v.  Ruckman. 

and  in  the  present  case  is,  that  in  the  former  case  the  attachment 
was  issued  against  the  plaintiff  in  the  execution,  and  in  this  case 
it  issued  against  a  third  person.  The  fact  that  the  title  to  the 
property  attached  is  nominally  in  a  third  person  is  no  obstacle 
in  the  way  of  proceeding  against  it  by  a  writ  of  attachment 
against  it  as  the  property  of  the  real  owner.  Considering  the 
nature  of  the  bill  filed  by  the  complainant,  the  object  of  his  suit, 
and  that  the  entire  proceedings  are  in  a  court  of  equity,  we  think 
that  no  difficulties  or  embarrassments  can,  under  such  circum- 
stances, arise  out  of  conflicting  jurisdictions. 

The  bill  charges  that  the  moneys  represented  by  the  decree 
were  the  moneys  of  the  defendant  in  attachment,  covertly  put  by 
him  in  the  name  of  the  complainant  in  fraud  of  his  creditors,  in 
contravention  of  the  statute  concerning  fraudulent  conveyances — 
a  statute  which  Lord  Mansfield  said  "  cannot  receive  too  liberal 
a  construction,  or  be  too  much  extended  in  suppression  of  fraud." 
Cadogan  v.  Kennet,  Cowp.  4^S,  Jf39.  The  bill  further  charges  that 
the  mortgagee  instituted  the  foreclosure  suit,  and  conducted  it  to 
a  final  decree  to  carry  that  purpose  into  effect.  It  prays  that 
that  fraudulent  scheme  may  be  arrested,  and  the  money  so  ille- 
gally attempted  to  be  diverted  from  the  payment  of  honest  debts 
be  appropriated  to  the  satisfaction  of  the  claims  of  the  creditors. 

The  case  made  by  the  bill,  if  sustained  by  evidence,  is  one 
that  specially  commends  itself  to  the  consideration  of  a  court  of 
equity  for  the  relief  asked,  if  it  can  be  granted  consistently  with 
the  rules  and  practice  of  the  court.  As  a  creditor  at  large,  the 
complainant  could  have  no  standing  in  court  to  enable  him  to 
present  his  case ;  but  we  think  he  might  acquire  that  position  by 
a  writ  of  attachment  against  the  fraudulent  debtor,  properly 
served,  and  the  service  of  such  a  writ  may  be  made  on  a  sheriff 
to  whom  the  execution  on  a  chancery  decree  was  directed  and 
delivered. 

In  considering  this  case,  we  have  not  overlooked  the  fact  that 
the  moneys  directed  to  be  raised  by  the  execution  were  not  ac- 
tually in  the  hands  of  the  sheriff  when  the  writ  of  attachment  was 
served,  or  when  the  complainant's  bill  was  filed.  The  bill 
charges  that  the  execution  was  issued  and  delivered  to  the 
sheriff,  and  that  the  sheriff  was  about  to  set  up  and  sell  the 


6  Stew.]  NOVEMBER  TERM,  1880.  313 

Tillotson  V.  Gesner. 

mortgaged  premises  by  virtue  thereof.  The  question  whether 
the  service  of  the  attachment  was  not  premature  is  one  not  with- 
out difficulty.  It  was  suggested,  on  the  argument  before  this 
court,  by  one  of  the  members  of  the  court,  but  was  not  raised  or 
discussed  by  counsel.  The  fact  was  mentioned  by  the  vice-chan- 
cellor in  his  opinion,  but  the  case  was  not  decided  by  him  on 
that  ground,  and  counsel  were  not  heard  on  that  subject  in  the 
court  below.  For  the  reason  already  given,  we  have  not  exam- 
ined or  considered  that  question. 

As  the  case  stands,  we  think  the  order  appealed  from  should 
be  reversed,  but  without  costs. 

Decree  unanimously  reversed. 


Daniel  Tillotson,  appellant, 

V. 

Mary  Ann  Gesner,  respondent. 

1.  Where  there  is  a  conveyance  of  land,  voluntary  on  its  face,  made  by  a  de- 
fiMidant  in  a  suit  just  before  a  judgment  for  a  large  sum  is  rendered  against 
him,  which  would  be  a  Hen  on  the  land  if  such  conveyance  had  not  been  made, 
and  the  evidence  fails  to  show,  by  strong  proof,  that  it  was  made  in  good  faith 
and  for  a  valuable  consideration,  the  specific  performance  of  an  agreement 
with  the  vendee  for  the  purchase  of  the  land  will  not  be  enforced, 

2.  If  the  title  to  land  be  doubtful,  equity  will  not  compel  the  defendant,  in 
a  bill  for  specific  performance,  to  expose  himself  to  the  hazard  of  litigation. 

3.  The  bill  may  be  dismissed  at  the  hearing,  without  reference,  if,  on  the 
pleadings  and  proofs,  the  court  can  then  decide  the  question. 


On  appeal  from  the  following  opinion  of  the  chancellor : 
This  is  a  bill  for  specific  performance.  By  agreement  in 
writing,  made  August  31st,  1876,  the  complainant  and  the  de- 
fendant, Daniel  Tillotson,  sen.,  agreed  to  exchange  land.  By  it 
the  former  agreed  to  convey  to  the  latter  land  in  Rockland  county. 
New  York,  described  in  the  agreement  as  follows :  "All  the 
pieces  or  parcels  of  land  and  premises,  at  Tappan,  described  in 


314         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Tillotson  V.  Gesner. 

the  deed  of  Isaac  H.  Bartow  and  wife,  of  April  5tli,  1871,  and  now 
the  property  of  said  Gesner,"  for  the  sum  of  $6,000,  subject  to 
a  mortgage  of  $4,000,  and  the  defendant,  Daniel  Tillotson,  sen., 
agreed  to  convey  to  the  complainant  land  in  Englewood,  in  Bergen 
county,  in  this  state,  described  in  the  agreement  as  follows: 
"Those  certain  lots  and  premises  described  in  two  deeds;  the 
one  of  Cornelius  H.  Bauta  and  wife  to  the  said  Tillotson,  dated 
May  1st,  1869,  and  the  other  dated  March  23d,  1867,  given  to 
Henry  Frank  and  Daniel  Frank,  and  now  owned  by  the  said 
Tillotson."  In  the  agreement,  the  valuation  of  $10,000  was  put 
on  the  complainant's  land,  and  the  valuation  of  $8,250  on  Tillot- 
son's  pro])erty.  It  was  agreed  that  on  the  exchanging  of  the 
deeds  of  conveyance,  which  was  to  take  place  on  or  before  the 
1st  of  October  then  next,  Tillotson  should  pay  (lend)  to  the  com- 
plainant $500  in  cash,  and  that  the  complainant  should  give  to 
him  a  mortgage  on  the  land  to  be  conveyed  by  him  to  her  for 
$2,750,  being  the  amount  of  the  difference  ($2,250)  in  the  valua- 
tions of  the  properties,  and  $500  to  be  lent.  They  further  agreed 
that  in  case  of  the  failure  of  either  of  them  in  any  one  or  all  of 
the  specifications  contained  in  the  agreement,  the  party  failing 
should  forfeit  and  pay  to  the  other  $500  and  brokerage  commis- 
sions as  agreed  upon  between  them.  In  pursuance  of  the  agree- 
ment, the  parties  respectively  took  possession  of  the  property  to 
be  conveyed  to  him  or  her.  Tillotson  took  possession  of  the 
Tappan  property,  moving  in  with  his  furniture  on  or  about  Sep- 
tember 20th,  1876,  and  the  complainant,  by  Tillotson's  permis- 
sion, took  possession  of  the  Englewood  property  two  days  after- 
ward. She  built  a  small  barn  upon  it,  and  otherwise  improved 
it  by  digging  a  well,  constructing  drains  &c.  &c.  Tillotson's 
sou  Daniel  continued  in  actual  possession  of  one  of  the  houses  on 
the  latter  property,  but  only  as  tenant  of  the  complainant,  under 
an  agreement  by  which  he  was  to  remain  until  the  following 
spring,  at  a  stipulated  rent.  On  the  2d  of  October,  1876  (the  1st 
was  Sunday),  the  complainant,  by  her  agent  and  her  counsel,  ten- 
dered herself  ready  to  deliver  to  Tillotson  a  deed  for  the  prop- 
erty to  be  conveyed  to  him,  and  a  mortgage  for  the  $2,750,  with 
a  receipt  from  the  mortgagee  in  the  $4,000  mortgage  for  all  in- 


6  Stew.]  NOVEMBER  TERM,  1880.  315 

Tillotson  V.  Gesner. 

terest  thereon  to  that  time.  Tillotson's  attorney  saying  that  he 
was  not  then  prepared  to  close  the  matter,  asked  for  an  extension 
of  time  till  the  12th  of  that  month,  which  was  granted,  and  a 
memorandum  to  that  effect  endorsed  on  the  agreement  and  signed 
by  him  and  the  complainant's  agent.  On  the  12th,  the  repi'e- 
sentatives  of  the  parties  met  at  the  place  agreed  upon,  and 
the  before-mentioned  deed  and  mortgage  and  receipt  were  de- 
livered to  Tillotson's  attorney,  who,  according  to  the  testimony 
of  the  complainant's  agent,  examined  them  and  then  returned 
them  to  the  complainant's  agent  (who  was  present),  with  the  re- 
mark that  the  papers  were  all  right,  but  that  he  was  not  prepared 
to  close  the  matter  up,  and  that  he  thought  that  Tillotson  in- 
tended to  pay  the  forfeit.  The  complainant's  counsel  says  that 
on  that  occasion  they  formally  handed  to  Tillotson's  attorney  the 
deed  and  bond  and  mortgage  and  receipt  for  interest,  at  the  same 
time  announcing  the  complainant's  readiness  to  perform  the  con- 
tract, and  demanded  of  Tillotson's  attorney  a  performance  on  the 
part  of  Tillotson ;  that  the  attorney  took  the  papers,  examined 
them,  and  pronounced  them  correct,  and  said  he  had  Tillotson's 
deed  to  the  complainant  with  him,  but  had  not  the  $500  cash. 
He  says  that  they  waited  a  considerable  time  for  Tillotson,  but 
he  did  not  come,  and  the  attorney  said  he  could  not  perform  the 
contract  without  him. 

It  appears  from  the  testimony  that  in  the  early  part  of  No- 
vember following,  Tillotson's  attorney  said  to  the  complainant's 
agent  that  he  had  a  deed  for  Tillotson's  property  properly 
executed  in  his  pocket,  and  that  he  would  give  it  to  the  agent  if 
the  latter  would  give  him  the  bond  and  mortgage  stipulated  for  in 
the  agreement  for  $2,250,  waiving  the  loan  of  $500,  and  added 
that  if  the  agent  would  agree  to  that,  he  would  call  at  the  hitter's 
house  the  next  day  and  exchange  the  papers.  To  this  the  agent 
re[)lied  that  he  had  promised  to  pay  the  $500  to  the  mortgagee 
of  the  $4,000  mortgage,  and  did  not  intend  to  break  his  promise; 
and  the  attorney  then  said  to  him  that  he  "  had  better  think  the 
matter  over  and  let  him  know — that  he  did  not  see  what  differ- 
ence the  $500  made  to  him,  as  he  got  none  of  the  money;"  to 
which  the  agent  rejoined  that  it  made  a  good  deal  of  difference 


316         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Tillotson  V.  Gesner. 

to  him  as  a  point  of  honor.     The  agent  testifies  that  in  that  or 
another  conversation  the  attorney  stated  that  Tillotson  was  willing 
to  assume  the  payment  of  the  principal  and  the  accrued  interest 
(instead  of  making  the  loan  of  $500)  on  the  $4,000  mortgage, 
which  offer  he  refused.   According  to  the  testimony  of  Tillotson's 
attorney,  the  only  objection  which  was  made  to  completing  the 
transaction  was  the  existence  of  a  judgment.     That  judgment, 
however,  did  not  appear  to  be,  and  was  not,  a  lien  on  the  com- 
plainant's property.     He  says  he  met  the  complainant's  agent 
frequently  afterwards,  and  made  several  propositions  to  him,  by 
authority  of  Tillotson,  all  of  which  were  rejected  on  the  spot. 
They  are  important  as  showing  that  there  was  no  objection  made 
to  the  complainant's  title.     One  of  them  was  as  follows :  Til- 
lotson to  convey  his  property  to  the  complainant  and   take  a 
mortgage  for  $2,750,  and  when  the  judgment  should  have  been 
removed,  to  lend  the  $500  and  take  the  conveyance  for  the  com- 
plainant's property,  and  another  was  to  carry  out  the  agreement 
according  to  its  provisions  (without  asking  for  the  removal  of  the 
judgment),  except  that,  instead  of  lending  the  $500,  which  would 
at  once  go  to  the  mortgagee  of  the  $4,000  mortgage,  to  leave 
that  amount  of  interest  unpaid  on  that  mortgage — Tillotson  to 
pay  it  when  convenient  to  him.    Tillotson's  attorney  says  :  "  We 
repeatedly  offered  to  pay  the  $500  forfeit,  and  to  pay  the  broker's 
commissions  [which  Tillotson  did,  in  fact,  pay],  as  expressed  in 
the  agreement,  to    end  the  contract  and   get   back  possession 
of  Tillotson's  property  without  a  suit."     There  were  what  he 
calls  some  "  ancient  defects  "  (an  old  mortgage  &c.),  in  the  com- 
plainant's title,  but  he  says  he  never  made  any  complaint  or 
objection  with  regard  to  them,  and  they  appear  to  have  been 
remedied.     He  says  that  at  the  meeting  of  the  12th  of  October, 
his  chief  objection  was  the  judgment,  although  he  adverts  to 
another  objection,  to  which  he  says  he  perhaps  alluded  at  the 
time.     This  appears  to  be  an  objection  based  on  the  fact  that  the 
description  of  the  complainant's  laud  seems  to  differ  from  the 
actual  location ;  but  the  location  has  existed  for  over  thirty  years, 
and  the  property  has  been  occupied  by  the  complainant  and  tho^e 
under  whom  she  claims  title,  according  to  it,  for  that  period. 


6  Stew.]  NOVEMBER  TERM,  1880.  317 

Tillotson  V.  Gesner. 

This  objection,  if  made,  seems  to  have  been  merely  suggested, 
and  not  to  have  been  urged  or  insisted  upon.  Nor  does  the 
evidence  show  that  there  was  any  deceit  on  the  part  of  the  com- 
plainant. As  before  stated,  Tillotson  repeatedly  offered  to  pay 
the  amount  of  the  forfeit  mentioned  in  the  agreement  and  the 
brokerage.  It  does  not  appear  that  he  ever  made  any  complaint 
that  he  had  been  overreached  in  the  bargain.  He  says  that  his 
property  had  been  for  sale  in  the  hands  of  the  agent,  Jackson, 
by  whom  the  exchange  was  negotiated,  for  two  years  before  the 
bargain  was  made  with  the  complainant,  and  that  that  was  the 
way  it  happened  that  Jackson  broached  the  subject  of  the  ex- 
change to  him ;  that  Jackson  spoke  to  him  about  the  exchange 
two  or  three  weeks  before  it  took  place,  and  spoke  to  him  or 
sent  him  word  several  times  before  he  went  to  see  the  property ; 
that  when  he  went  to  see  the  property,  he  went  alone ;  that  he 
spoke  to  no  one  there  except  the  complainant  (he  is  mistaken  as 
to  the  person — it  was  Ida  E.  Gesner),  and  she  invited  him  in  to 
lunch,  which  invitation  he  accepted,  but  he  can  remember  nothing 
that  was  said  by  her  on  the  occasion  in  regard  to  the  property, 
except  tliat  she  gave  a  reason  for  its  neglected  appearance.  He 
on  that  occasion  examined  the  property,  and  says  he  was  dissat- 
isfied with  its  general  condition  and  situation — that  he  found  it 
in  a  bad  condition.  Immediately .  after  that  visit,  there  were 
negotiations  between  him  and  Jackson  and  the  complainant's 
agent  in  regard  to  the  exchange.  The  complainant's  agent 
offered  $2,000  to  boot,  and  Tillotson  refused  to  exchange  on 
those  terms.  Jackson  brought  the  parties  together  again,  and 
told  Tillotson  that  the  complainant  would  give  $2,250  to  boot. 
Tillotson  still  declined.  He  afterwards  went  to  see  the  com- 
plainant's property  again,  and  subsequently  informed  Jackson 
that  he  would  make  the  exchange,  and  lend  the  $500  as  part  of 
the  consideration.  All  he  did  was  done  with  deliberation,  and 
there  is  no  evidence  whatever  of  any  misrepresentation.  It  is 
urged  on  his  behalf,  indeed,  that  the  complainant's  property  was 
put  into  the  exchange  at  $10,000,  while  it  appears  to  be  worth 
no  more  than  $4,000 ;  but  his  own  property  was  put  in  at 
$8,250,  and  there  is  no  evidence  whatever  as  to  its  value.     He 


318         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Tillotson  V.  Gesner. 

swears  that  the  complainant's  agent  told  him  that  the  complain- 
ant's property  was  worth  $10,000  or  $12,000;  but  the  agent 
denies  it,  and  says  that  what  he  said  was  that  it  was  worth 
$10,000  as  much  as  any  property  in  Tappan.  But  that  was 
relative,  and  there  are  no  means  of  judging  whether  it  was  even 
extravagant.  It  is  quite  clear,  however,  that  the  expression  of 
value,  whatever  it  might  have  been,  was  not  of  a  kind  to  be 
ranked  as  a  misrepresentation.  It  was  manifestly  mere  "dealing 
talk."  Mrs.  Van  "Wart,  daughter  of  the  complainant,  testifies 
that  Tillotson,  on  the  occasion  when  he  first  went  to  see  the  com- 
plainant's property,  said  he  had  been  around  the  place,  and  liked 
it  very  much,  and  thought  it  a  very  fine  one.  The  complainant's 
agent  says  that  when,  after  Tillotson  took  possession  of  the 
Englewood  property,  he  returned  to  get  some  articles  which  had 
been  left  there,  he  saw  Tillotson,  and  the  latter  told  him  to  tell 
his  (Tiilotson's)  son,  when  he  returned  to  Tappan,  that  he  was 
"  terribly  homesick ;  "  and  he  added  that  he  thought  he  would 
not  make  the  exchange — that  he  was  too  old  to  take  charge  of 
such  a  property.  Tiilotson's  son  Daniel  says  that  the  reason  his 
father  left  the  complainant's  property  after  he  had  taken  posses- 
sion, was  that  he  was  disgusted  with  the  trade ;  that  he  had  some- 
thing which  he  could  not  shoxilder ;  that  he  could  not  get  a  clear 
title.  He  adds  that  his  father  told  him  he  would  not  trade — 
that  he  would  pay  his  $500  (the  forfeit),  according  to  the  con- 
tract. Neither  in  this  nor  in  any  other  testimony  in  the  cause  is 
there  any  complaint  or  allegation  that  deceit  has  been  practiced 
on  Tillotson,  whether  in  misre])resentation  of  value  or  otherwise. 
The  fact  seems  to  be  that  he,  soon  after  the  exchange,  became 
dissatisfied  with  the  bargain,  and  was  anxious  to  escape  compli- 
ance with  it.  The  objection  which  he  makes  to  the  contract — that 
it  is  uncertain  in  its  description  of  the  property  to  be  conveyed 
by  him — is  entirely  untenable.  It  is  based  on  the  fact  that  in 
the  contract  he  says  that  part  of  his  property  was  conveyed  to 
Henry  Frank  and  Daniel  Frank,  by  deed  dated  March  23d, 
1867,  whereas  it  was  conveyed  to  Henry  Frank  alone  by  deed 
of  that  date.  It  is  to  be  observed  that  he  seeks  to  take  advan- 
tage of  the  alleged  uncertainty  in  his  own  description  of  his 


6  Stew.]  NOVEMBER  TERM,  1880.  319 

Tillotson  V.  Gesner. 

land.  But  there  is,  in  fact,  no  room  for  the  objection.  It  is 
enough  if  the  property  be  so  described  as  that  it  may  be  ascer- 
tained with  certainty.  Camden  and  Amhoy  R.  R.  Co.  v.  >S^eM;- 
aH,  3  a  E.  Gr.  4.89;  Lewis  v.  Reichey,  12  G.  E.  Gr.  2Jfi.  The 
reference  to  Daniel  Frank  is  evidently  a  mere  mistake,  which  a 
reference  to  the  deed  itself  would  correct ;  and,  besides,  Tillotson 
admits,  in  his  testimony,  that  the  property  claimed  by  the  com- 
plainant— the  six  lots  and  two  houses  thereon — is  the  property 
which  he  agreed  to  convey  in  exchange. 

Nor  can  the  defence  that  the  complainant  has  an  adequate 
remedy  at  law,  avail  the  defendants.  The  provision  for 
forfeiture  contained  in  the  agreement  was  intended  as  a  penalty. 
Whitfield  V.  Levy,  6  Vr.  llid.  It  applies  the  forfeiture  to  any 
one  or  all  of  the  specifications ;  that  is,  on  the  part  of  the  com- 
plainant, to  the  sale  of  her  land  and  the  giving  of  the  $2,750 
mortgage ;  on  the  part  of  Tillotson,  to  the  sale  of  his  land  and 
the  loan  of  $500.  Moreover,  Tillotson,  as  he  admits  in  his  tes- 
timony, and  as  is  otherwise  fully  proved,  gave  possession  to  the 
complainant  under  the  agreement,  and  the  complainant  yielded 
up  to  him  under  the  agreement  the  possession  of  her  property, 
and  he  took  it.  The  complainant  has  expended  money  in  improv- 
ing the  Tillotson  property.  Tillotson  is  not  in  a  position  suc- 
cessfully to  resist  the  complainant's  demand  for  specific  perform- 
ance with  the  claim  that  the  complainant  has  a  remedy  at  law. 
The  contract  was  partly  performed  when  possession  was  given 
and  taken.  Tillotson  will  be  decreed  to  perform  his  contract 
specifically.  Since  the  commencement  of  this  suit  the  com- 
plainant's property  has  been  sold  and  bought  in  by  the  mortgagee 
under  foreclosure  of  the  $4,000  mortgage.  The  complainant, 
however,  tenders  herself  ready  to  give  to  Tillotson  a  good  title 
to  the  property,  subject  to  encumbrance  equal  to  the  amount  of 
$4,000,  with  interest  at  seven  per  cent,  per  annum,  from  October 
12th,  1876.  Opportunity  will  be  afforded  to  her  to  obtain  this 
title,  and  also  to  obtain  proper  title  by  deed  for  so  much  of  her 
land  as  is  not  covered  by  the  deed  to  her  therefor.  Fry  on  Spec. 
Perf.  §  872.  The  delay  in  bringing  suit  is  accounted  for  as 
having  been  occasioned  by  the  negotiations  of  the  parties  for  a 


320        COURT  OF  ERRORS  AND  APPEALS.     [33  Eq. 

Tillotson  V.  Gesner. 

settlement,  and  it  appears  very  clearly  that,  in  order  to  prevent 
proceedings  for  specific  performance,  Tillotson  pretended  to  con- 
vey by  a  merely  colorable  deed,  dated  June  5th,  1877,  to  his  son 
Daniel,  j)art  of  the  Englewood  property  (the  part  of  the  prop- 
erty on  which  Daniel  lived  when  the  contract  for  exchange  was 
made),  as  is  admitted,  without  consideration ;  the  sou  merely 
claiming  that  it  was  given  to  him  by  his  father  over  four  years 
before  the  date  of  the  deed.  And,  with  the  same  object,  Tillot- 
son, previously,  by  mortgage  dated  August  31st,  1876,  but  not 
acknowledged  until  October  9th  of  that  year,  pretended  to 
mortgage  the  whole  property  to  his  son  Moses,  to  secure  $2,750. 
That  mortgage  was  without  consideration,  and  both  it  and  the 
deed  to  Daniel  were  taken  with  full  notice  of  the  contract.  The 
complainant  insists  that  it  was  agreed  that  the  mortgage  of 
$2,750  was  to  be  payable  in  three  years.  Tillotson  says  that 
there  was  nothing  definite  said  about  the  time  (the  contract  is 
silent  on  the  subject),  but  adds  that  he  remarked  to  Mr.  Jackson 
that  it  was  "  most  customary  to  make  them  [mortgages]  for  one 
year."  By  his  answer  he  admits  that  the  mortgage  was  to  be 
payable  in  one  year.  There  is  no  satisfactory  proof  that  the 
mortgage  was  to  be  payable  at  any  more  distant  period.  In  the 
absence  of  the  admission  of  Tillotson,  the  contract  would  be 
construed  as  providing  for  a  mortgage  payable  immediately. 
Ch^een  v.  Richards,  8  C.  E.  Gr.  32,  536.  The  mortgage  to  be 
given  for  $2,750  will  be  payable  in  one  year  from  the  time  of  de- 
livery, with  interest  on  $2,250  at  seven  per  cent,  per  annum,  from 
October  12th,  1876,  up  to  July  4th,  1878,  and  at  six  per  cent, 
from  that  time,  and  on  the  whole  of  the  $2,750  at  six  per  cent, 
from  the  time  of  the  delivery  of  the  mortgage,  and  it  will  con- 
tain the  usual  insurance  clause.  Both  parties  admit  that  the 
mortgage  was  to  be  payable  at  a  future  time,  with  interest,  but 
they  differ  as  to  the  time. 

G.  R.  Dutton  and  G.  CoUina,  for  appellant. 

I.  The  contract  is  grossly  unfair.     IS  Ves.  225 ;    Torrey  v. 
Buck,  1  Gr.  Ch.366,  37Jr-5 ;  Stoutenburgh  v.  Tompkins,  1  Stock. 


6  Stew.]  NOVEMBER  TERM,  1880.  321 

Tillotson  V.  Gesner. 

S32,  335-6 ;  Craven  v.  Sichel,  1  Yes.  60 ;  Calverly  v.  Williams, 
1  Ves.  210  ;  Cooper  v.  Dunne,  1  Ves.  566 ;  Benedict  v.  Lynch,  1 
Johns.  Ch.  375  ;  Roach  v.  Rutherford,  4-  Desauss.  131 ;  Waters  v. 
Travis,  9  Johns.  If50  ;  Pratt  v.  Carroll,  8  Cranch  4-71 ;  Ililler  v. 
Chetwood,  1  Gr.  Ch.  199,  208;  Ely  v.  Perrine,  Id.  296;  Stout- 
enbergh  v.  Tompkins,  1  Stock.  332 ;  Plummer  v.  Keppler,  11  C. 
E.  Gr.  4-81 ;  Hopper  v.  Hopper,  1  C.  E.  Gr.  14-7 ;  Underwood 
V.  Hitchcox,  1  Ves.,  sen.,  279 ;  King  v.  Hamilton,  4  P^-  311 ; 
Seymour  v.  Delancy,  6  Johns.  Ch.  222 ;  Rodman  v.  Zilley,  Saxt. 
320,  324,  325 ;  Savage  v.  Taylor,  cited  in  Seymour  v.  Delancey, 
6  Johns.  Ch.  222;  Pinner  v.  Sharp,  8  C.  E.  Gr.  274,  ^SO ; 
Townsend  v.  Stangroorn,  6  Ves.  328 ;  Mortloch  v.  Butler,  10  Ves. 
292;  Suffern  v.  Butler,  4  C.  E.  Gr.  205. 

II.  The  contract  does  not  designate  with  certainty  the  prem- 
ises to  be  conveyed  by  Tillotson.  Robeson  v.  Hornhaher,  2  Gr. 
Ch.  60;  Underwood  v.  Hitchcox,  1  Ves.  sen.  279;  Carr  v. 
Passaic  L.  &  B.  Co.,  4  C.  E.  Gr.  4^6;  S.  C,  7  G.  E.  Gr.  86;  King 
V.  Ruckman,  5  C.  E.  Gr.  317 ;  see  cases  cited  by  defendant  in 
King  v.  Ruckman,  5  C.  E.  Gr.  330,  331,  332. 

III.  Complainant's  title  to  Tappan  property.  Court  will  not 
compel  a  purchaser  to  take  a  doubtful  title.  St.  Mary's  Church 
V.  Stockton,  4  Hal.  Ch.  520,  531 ;  Chambei^s  v.  Tulane,  1  Stock. 
146;  Vreeland  v.  Blauvelt,  8  C.  E.  Gr.  483;  Dobbs  v.  Nor- 
cross,  9  C.  E.  Gr.  327 ;  2  Pars,  on  Con.  564;  Johnson  v.  Hub- 
bell,  2  Stock.  332,  342;  Story's  Eq.  Jur.  749,  750;  Read  v. 
Livingston,  3  Johns.  Ch.  4^1, 500  ;  Lockyer  v.  Dehart,  1  Hal.  450; 
Laurence  v.  Lippencott,  1  Hal.  4'^^  i  Case  v.  Phelps,  39  N.  Y. 
167;  Robinson  v.  StewaH,  10  N.  Y.  195;  Story's  Eq.  Jur.  353; 
Mulford  V.  Tunis,  6  Vr.  256;  Garr  v.  Hill,  1  Stock.  215;  Tantum 
V.  Green,  6  C.  E.  Gr.  369;  De  Witt  v.  Sickle,  2  Stew.  Eq.  209, 
215;  Randall  v.  Vromn,  3  Stew.  Eq.  353;  Stoifs  Eq.  Jur.  369. 

A  voluntary  settlement  by  a  person  who  is  indebted,  is  void  as 
to  existing  creditors.  Read  v.  Livingston,  3  Johns.  Ch.  481, 500  ; 
Bayard  v.  Hoffman,  4  Johns.  Ch.  450  ;  Seward  v.  Jackson,  8 
Cow.  4O6 ;  Jackson  v.  Peck,  4  Wend.  300  ;  Van  Wyke  v.  Sew- 
ard, 6  Paige  62;  Robinson  v.  Stewart,  10  N.  Y.  190,  195;  1 
Story's  Eq.  Jur.  §  395;  Beehnan  v.  Mcmtgomery,  1  McCart.  Ill; 

21 


322         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Tillotson  V.  Gesner. 

Smith  V.  Vreeland,  1  C.  E.  Ch\  201;  Tantum  v.  Green,  ^  C.  E. 
Gr.  105 ;  S.  C,  6  C.  E.  Gi\  364,  369;  Be  Witt  v.  Van  SicJde, 
£  Stew.  Eq.  no,  215. 

lY.  The  contract  is  without  mutuality.  Story's  Eq.  Jur.  723; 
Fry  on  Spec.  Ferf.  2S6  ;  Hopper  v.  Hopper,  1  C.  E.  Gr.  14.7-8; 
Stoutenhergh  v.  Tompkins,  1  Stock.  34^-4;  Johnson  v.  Hubbell, 
2  Stock.  34^;  Welch  v.  Bayard,  6  C.  E.  Gr.  187 ;  St.  Mary's 
Church  V.  Stockton,  4  Hal.  Ch.  520,  532;    Cheddick  v.  Marsh, 

1  Zab.  466. 

B.  P,  Wortendyke,  for  respondent,  cited — 

Whitfield  V.  Levy,  6  Vr.  14j9  ;  Cotheal  v.  Talmage,  9  N.  Y. 
551;  Colwell  v.  Lawrence,  38  N.  Y.  71;  Cusler  v.  Butler,  3 
a  &  F.  240 ;  Beynolds  v.  Bridger,  37  Eng.  L.  &  Eq.  130; 
Noyes  v.  Fhillips,  60  N.  Y.  4O8 ;  Hoag  v.  McGinnis,  22  Wend. 
165 ;  Spear  v.  S7nith,  1  Fen.  4^4  >  Bagley  v.  Feddie,  16  N.  Y. 
464  >  Lampman  v.  Cochran,  16  N.  Y.  275 ;  Staples  v.  Farker, 
41  Barb.  468;  Clement  v.  Cash,  21  N.  Y.  253;  Bage  v. 
3IiUard,  12  N.  Y.  Leg.  Obs.  57  ;  McNill  v.  Clark,  7  Johns.  465; 
Clumn  V.  Moseby,  1  Bail.  136 ;  Wetland  Canal  v.  Hathway,  8 
Wend.  480;  Dezell  v.  Odell,  3  Hill  215;  1  Addison  on  Con. 
745  §  496;    Hopson  v.  Trevor,  1  Str.  533 ;  French  v.  Macale, 

2  Dr.  &  War.  269;  Long  v.  Bowning,  33  Beav.  585;  Jack- 
son V.  Barker,  2  Edw.  4'^^  >  Beale  v.  Hayes,  5  Sandf,  64O ; 
Cheddick  v.  Marsh,  1  Zab.  4^3. 

This  is  a  suit  for  a  specific  performance  of  a  contract  for  the 
exchange  of  lands.  The  agreement  is  in  writing,  dated  August 
31st,  1876,  and  by  it  the  complainant,  Mary  Ann  Gesner,  bar- 
gained to  exchange  and  convey  to  the  defendant,  Daniel  Tillot- 
son, several  parcels  of  land  and  premises  at  Tappan,  Rockland 
county,  in  the  state  of  New  York,  and  the  defendant  bargained 
to  exchange  and  convey  to  the  complainant  certain  lots  and 
premises  at  Englewood,  Bergen  county  in  the  state  of  New 
Jersey,  on  or  before  the  1st  day  of  October  then  next.  Tillotson 
agreed  to  lend  to  the  complainant  $500,  and  she  contracted  to 


6  Stew.]  NOVEMBER  TERM,  1880.  323 

Tillotson  V.  Gesner. 

give  him  a  mortgage  on  the  lands  at  Englewood,  to  be  conveyed 
to  her,  for  $2,750,  which  included  the  sum  of  $500  above  named, 
and  $2,250,  the  amount  to  be  paid  as  difference  in  the  exchange 
of  the  properties.     Other  particulars  are  given  in  the  opinions. 

The  opinion  of  the  court  was  delivered  by 

SCUDDER,  J. 

In  examining  this  case,  the  first  question  which  presents  itself 
is  in  reference  to  the  validity  of  the  title  of  the  complainant  to 
tlie  lands  at  Tappan  which  she,  by  this  bill,  seeks  to  force  on  the 
defendant  against  his  will.  This  is  the  consideration  which 
gives  value  to  the  contract;  if  it  fails  there  is  no  mutuality  in  the 
agreement,  and  it  should  not  be  enforced.  This  title  is  based  on  a 
conveyance  from  Isaac  H.  Bartow  and  wife  to  Abraham  Van  Wart, 
dated  April  5th,  1871.  The  property  described  in  the  deed  is  that 
designated  in  the  agreement  to  be  conveyed  to  the  defendant. 
Isaac  H.  Bartow  obtained  this  property  from  John  R.  Verbryck, 
by  deed  dated  May  1st,  1849.  It  is  said  that  the  description 
contained  in  this  deed  does  not  cover  the  northern  part  of  the 
lot  of  land  and  premises  to  be  conveyed,  and  there  is  a  small  gore 
of  land  on  the  southerly  side  which  is  omitted.  There  is  an  ap- 
parent error  in  the  boundaries  of  the  latter  deed,  but  Bartow  and 
Van  Wart  have  had  undisturbed  and  undisputed  possession  of 
the  entire  lands,  as  owners,  since  1849,  and  no  adverse  claim  of 
title  is  shown.     This  objection  cannot,  therefore,  prevail. 

It  also  appears,  by  the  agreement,  that  the  property  at  Tappan 
was  to  be  conveyed  to  the  defendant,  Tillotson,  subject  to  a  mort- 
gage of  $4,000.  During  the  controversy  between  these  parties, 
this  mortgage  has  been  foreclosed  and  the  premises  sold,  and 
bought  in  by  the  mortgagee,  but  the  complainant,  in  the  bill  of 
complaint,  offers  specifically  to  perform  the  agreement  in  all 
things  on  her  part,  which  includes  the  obtaining  of  this  title  and 
the  conveyance  of  the  lands  with  no  greater  encumbrance  thereon 
tlian  was  stipulated  for,  and  subject  to  the  decree  of  the  court. 
The  defendant  will  therefore  be  amply  protected  from  a  convey- 
ance of  his  lands  until  a  proper  assurance  of  the  title  of  the  com- 


324        COURT  OF  ERRORS  AXD  APPEALS.  [33  Eq. 


Tillotson  V.  Gesner. 


plainant's  lauds  named  in  the  agreement  is  made.    This  has  been 
provided  fur  in  the  decree  made  by  the  chancellor. 

Another  objection  made  is,  that  the  complainant,  Mary  Ann 
Gesner,  held  the  title  by  a  voluntary  conveyance  from  her  son- 
in-law,  Abraham  Van  Wart,  wiiich  was  made  to  defraud  his 
creditors,  and  is  voidable  by  them.  The  search  for  title  made 
by  the  defendant's  attorney,  after  the  agreement  for  exchange  had 
been  executed,  and  after  the  parties  had  taken  possession  of  the 
respective  properties  under  their  contract,  showed  these  facts — 
that  a  judgment  of  the  supreme  court  of  the  state  of  Xew  York 
was  rendered  March  8tli,  1875,  at  the  suit  of  Margaret  Maun, 
administratrix  &c.,  against  Abraham  Van^Wart  and  Matilda,  his 
wife,  for  the  foreclosure  and  sale  of  mortgaged  premises,  not 
named  in  this  agreement,  and  against  Abraham  Van  Wart  for 
any  deficiency  that  might  arise;  that,  April  29th,  1875,  a  judg- 
ment was  obtained  in  the  supreme  court  of  the  state  of  New 
York,  and  docketed  in  Rockland  county,  in  favor  of  Margaret 
Mann,  administratrix  &c.,  against  Abraham  Van  Wart,  for 
$1,308.45,  the  deficiency  above  named.  On  April  22d,  1875, 
seven  days  before  this  judgment  for  deficiency  was  obtained, 
Van  Wart  conveyed  this  property  at  Tappan  to  the  complainant, 
Mary  Ann  Gesner,  his  mother-in-law,  for  the  consideration, 
therein  expressed,  of  $1 ;  and  on  April  29th,  1875,  the  day  on 
which  the  judgment  was  rendered  against  him,  the  complainant 
conveyed  the  premises  to  Matilda  Van  Wart,  wife  of  Abraham 
Van  Wart,  for  the  consideration,  therein  expressed,  of  §1.  These 
deeds  were  evidently  voluntary  conveyances,  by  which  the  title 
to  these  lands  was  clianged  from  Van  Wart  to  his  wife,  at  the 
very  time  of  the  recovery  of  the  judgment  for  deficiency  against 
him.  The  judgment  was  not  a  legal  lien  on  the  land,  because, 
on  the  day  it  was  recovered,  the  conveyance  had  been  made  to 
Mrs.  Van  Wart,  the  defendant's  wife,  but  if  the  deeds  were  made 
to  defraud  creditors  they  were  voidable  by  them,  and  if  the  de- 
fendant, Tillotson,  took  title  after  his  searches  had  disclosed 
these  facts,  he  would  be  charged  with  notice  of  the  fraud,  if  it 
existed,  and  his  title  could  also  be  assailed  by  the  creditors  of 
Van  Wart.     On  August  31st,  1876,  while  the  title  thus  stood  in 


G  Ste\v.]  NOVEMBER  TERM,  18S0.  325 

Tillotson  17.  Gesner. 

the  name  of  Matilda  Van  Wart,  this  agreement  was  made  for 
the  exchange  of  these  lands,  in  the  name  of  Mary  Ann  Gesner, 
and  was  sio-ned  hv  Abraham  Van  AVart  as  her  a^ent.  These 
acts  of  alleged  fraud  on  creditors  are  set  out  in  the  defendant's 
answer,  and  appear  in  the  proofs. 

It  is  apparent,  from  the  testimony  of  the  defendant  and  from 
the  evidence  of  David  Van  Wart,  an  attorney,  of  Xew  York, 
who  acted  for  his  brother,  Abraham  Van  Wart,  in  the  attempts 
that  have  been  made  to  effect  a  settlement  between  these  parties, 
and  to  pass  the  titles,  and  also  from  the  statements  made  by 
Abraham  Van  Wart,  that  the  defendant's  attorney  did,  at  their 
first  meeting  after  the  contract  was  signed,  and  at  the  time  ap- 
pointed for  exchange  of  titles,  object  to  the  existence  of  this  judg- 
ment. Different  projects  have  been  suggested  for  settlement,  but 
there  has  been  no  w^aiver  or  release  of  this  objection  to  the  title. 

Although  the  deeds  from  Abraham  Van  Wart  to  Mrs.  Gesner, 
and  from  her  to  Mrs.  Van  Wart,  contain  only  a  nominal  consid- 
eration of  -§1,  there  has  been  offered  in  evidence  a  mortgage  given 
by  Abraham  Van  Wart  to  George  M.  Gesner,  husband  of  Mary 
Ann  Gesner,  on  the  Tappan  property,  dated  August  24th,  1871, 
which,  it  is  said,  was  part  of  the  consideration  of  the  deed  from 
Van  Wart  to  Mrs.  Gesner ;  and  that  the  deed  from  Mrs.  Gesner 
to  Mrs.  Van  Wart  was  given  to  take  effect  at  the  mother's  death, 
instead  of  a  will.  The  amount  is  not  given  in  the  memorandum' 
of  exhibits  in  possession  of  the  court,  but  it  is  not  important. 
George  M.  Gesner  was  living,  and  it  does  not  appear  how  his 
wife  became  the  owner  of  this  mortgage,  which  has  never  been 
recorded,  nor  has  any  assignment  thereof  to  her  been  shown. 
The  alleofation  that  this  mortgage  entered  into  the  consideration 
of  the  deed  to  Mrs.  Gresner  is  thus  stated  by  David  Van  Wart 
in  his  testimony,  and  this  is  the  only  evidence  by  any  witness 
on  this  subject : 

"I  think  the  main  question,  primarilv,  was  the  good  faith  and  validitj  of 
the  conveyance  from  A  braham  Van  Wart  to  Mrs.  Gesner ;  it  was  then  stated 
that  the  cancellation  and  surrender  of  that  mortgage  was,  in  truth  and  fact, 
part  of  the  consideration  of  that  conveyance." 

Nothing  more  particular  is  given  about  this  mortgage,  or 


326         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Tillotson  V.  Gesner. 

how  it  entered  into  the  consideration  of  the  deed,  or  why  it 
was  never  recorded.  After  the  articles  of  agreement  were 
signed  between  tlie  parties  to  this  suit,  the  defendant's  attor- 
ney testifies  that  he  was  told  by  David  Van  AVart  of  an 
unrecorded  and  uncanceled  mortgage  on  the  Tappan  property, 
that  had  been  held  by  David  Gesner,  and  that  he  replied  that  it 
should  be  canceled,  now  that  he  had  notice  of  it,  for  it  was  the 
same  to  them  after  notice  as  a  recorded  mortgage.  This  mort- 
gage, with  an  endorsement  of  satisfaction  thereon,  was  afterwards 
produced  and  shown  to  the  defendant's  attorney,  to  satisfy  hira 
that  it  was  no  longer  an  existing  encumbrance  on  the  property. 
It  is  manifest,  from  this  evidence,  that  Abraham  Van  Wart  con- 
trolled this  property,  and  the  different  title  papers  relating  thereto, 
in  his  own  interest,  and  according  to  his  own  wiU.  And  now 
the  question  may  be  asked.  What  careful  attorney,  in  searching 
this  title,  would  advise  a  client  to  take  it  and  pay  a  full  consid- 
eration? Or  who  will  say  that  it  would  be  safe,  if  the  judgment 
creditor  of  Abraham  Van  Wart  shall  bring  a  suit  to  set  the  con- 
veyances to  Mrs.  Gesner  and  Mrs.  Van  Wart  aside  as  fraudu- 
lent? 

It  is  the  duty  of  the  court  to  see  that  the  objections  to  the  title 
are  not  frivolous,  or  intended  only  to  delay  and  embarrass  the 
complainant;  and  such  objections  should  not  be  treated  so 
"seriously  as  to  be  received  as  excuses  for  the  non-performance  of 
a  contract.  But,  on  the  other  hand,  a  court  of  equity  will  not 
compel  a  party  to  take  and  pay  for  an  estate  of  which  only  an 
imperfect  title  can  be  given.  The  distinction  is  also  to  be  made 
between  the  case  where  the  apparent  defect  in  the  vendor's  title 
is  such  an  one  as  may  be  expected  to  be  removed  on  a  reference 
consistently  with  equity  practice,  and  that  where  the  court  will 
not  allow  the  complainant,  seeking  a  specific  performance,  to 
make  up  a  case  in  this  way,  but  will  only  dismiss  his  bill  without 
j)rejudice  to  a  new  bill.  Blatchford  v.  Kirkpafrick,  6  Beav.  232  ; 
Clay  V.  Ruford,  19  Eng.  L.  &  E.  350  ;  Girrer  v.  Bastaid,  2  Phil. 
619;  1  De  G.  M.  &  G.  69.  The  true  rule  is  stated  in  3  Pars, 
on  Con.  {6th  ed.)  *380,  that  if  the  character  of  the  title  be 
doubtful,  although  the  court  were  able  to  come  to  the  con- 
clusion that,  on  the  whole,  a  title  conid  be  made  that  would  not 


6  Stetv.]  NOVEMBER  TERM,  1880.  327 

Tillotson  V.  Gesner. 

probably  be  overthrown,  this  would  not  be  good  title  enough ; 
for  the  court  have  no  right  to  say  that  their  conclusion,  or  their 
opinion,  would  bind  the  whole  world,  and  prevent  an  assault  on 
the  title.  The  purchaser  should  have  a  title  which  shall  enable 
him  not  only  to  hold  his  land,  but  to  hold  it  in  peace ;  and  if  he 
wishes  to  sell  it,  to  be  reasonably  sure  that  no  flaw  or  doubt  will 
come  up  to  disturb  its  marketable  value.  The  court  cannot  satis- 
factorily or  conclusively  settle  a  title  in  the  absence  of  parties 
who  are  not  before  them  in  the  suit  to  assert  their  estate  or  interest 
in  the  lands.  These  statements  accord  with  the  conclusions  from 
cases  in  the  notes  to  Seton  v.  Slade,  3  Lead.  Cas.  in  Eq. 
67,  79,  87,  88;  Fry  on  Spec.  Perf.  ch.  xvii.  34.7;  1  Story's  Eq. 
Jur.  7Jt9,  and  with  cases  in  our  own  courts :  St.  Mary's  Church  v. 
Stockton,  4-  Hal.  Ch.  520 ;  Chambers  v.  Tulane,  1  Stock.  HB ; 
Johnson  v.  Hubhell,  2  Stock.  332,  34^ ;  Vreeland  v.  Blauvdt,  8 
C.  E.  Gr.  483;  Dohhs  v.  Norcross,  9  C.  E.  Or.  327.  In  the 
last  case,  the  chancellor  says  that  the  court  will  never  compel  a 
purchaser  to  take  a  title  where  the  point  on  which  it  depends  is 
too  doubtful  to  be  settled  without  litigation,  or  where  the  purchase 
would  expose  him  to  the  hazard  of  such  proceedings. 

Where  there  is  a  conveyance  of  land,  voluntary  on  its  face, 
made  by  a  defendant  in  a  suit,  just  before  a  judgment  for  a  large 
sum  is  rendered  against  him,  which  judgment  would  be  a  lien  on 
the  land  if  such  conveyance  had  not  been  made,  and  the  evidence 
fails  to  show,  by  strong  proof,  that  it  was  made  bona  fide  and  for 
a  valuable  consideration,  a  case  is  made  for  the  application  of 
the  rule  above  stated,  and  the  specific  performance  of  an  agree- 
ment for  the  purchase  of  the  land  will  not  be  enforced. 

Although  the  question  of  the  sufficiency  of  the  title  often  arises 
after  the  reference  of  title  to  a  master  has  been  made,  yet  the  bill 
may  be  dismissed  at  the  hearing,  if  the  defect  in  title  has  been 
prominently  put  forward  in  the  pleadings  and  proofs,  and  the 
court  can  then  decide  the  question.  Fry  on  Spec.  Perf.  ch.  xvii. 
*253.  This  case,  on  the  proof  before  us,  looks  like  an  attempt 
to  impose  a  hard  bargain  and  a  suspicious  title  on  an  old  man 
seventy-six  years  of  age,  and  is  not  entitled  to  the  favorable  con- 
sideration of  a  court  of  equity  on  bill  for  specific  performance. 


328        COURT  OF  ERROKS  AND  APPEALS.  [33  Eq. 

Mutual  Life  Ins.  Co.  v.  Sturges. 

For  these  rejisons,  without  considering  other  questions  which 
have  been  raised,  the  bill  should  be  dismissed  and  the  decree 
reversed,  with  costs  on  appeal  and  in  the  court  of  chancery. 

Decree  unanimously  reversed. 


The  Mutual  Life  Insurance  Company  of  New  York, 

appellant, 

V, 

Thomas  T.  Sturges  et  al.,  respondents. 

1.  A  sale  under  a  decree  in  chancery  may  be  set  aside,  even  after  deed  de- 
livered, by  an  order  made  in  the  original  cause,  either  for  impropriety  in  the 
sale,  or  for  the  purpose  of  letting  in  a  defence  to  the  action. 

2.  The  making  of  such  an  order  is  a  proper  matter  of  appeal,  either  by  the 
parties  to  the  suit  or  by  the  purchaser. 

3.  A  prior  mortgage  to  "  S.  &  Co.,  a  firm  composed  of  T.  S.  and  J.  S.,"  will 
be  postponed  to  a  subsequent  one  given  to  secure  a  loan  made  upon  the  strength 
of  an  agreement  of  J.  S.,  surviving  partner,  and  one  of  the  executors  of  T.  S., 
deceased,  to  the  efiect  that  the  lender's  lien  should  be  preferred. 

4.  Acts  done  by  one  of  several  executors,  which  relate  to  the  delivery,  gift, 
sale  or  release  of  the  testator's  personalty,  are  deemed  the  acta  of  all,  and  bind 
the  estate  accordingly. 

5.  In  equity  pleadings,  such  degree  of  certainty  should  be  adopted  as  will 
give  the  opposite  party  full  information  of  the  case  he  is  called  upon  to  meet. 

6.  At  or  after  final  hearing,  it  is  too  late  to  object  to  mere  want  of  precision 
in  the  bill. 

7.  A  bill  alleging  that  a  contract  about  a  mortgage  given  to  S.  &  Co.,  was 
made  by  that  firm  or  their  survivors  and  legal  representatives,  and  setting  out 
who  are  the  surviving  partner  aud  the  legal  representatives  of  the  deceased, 
and  making  them  defendants,  is  not  so  vague  as  to  justify  the  vacation  of  a 
decree  based  upon  the  contract,  especially  after  the  decree  has  been  executed. 


On  appeal  from  a  decree  of  the  vice-chancellor,  reported  in 
MtUual  Life  Ins.  Co.  v.  Sturges,  5  Stew.  Eq.  678. 


6  Stew.]  NOVEMBER  TERM,  1880.  329 

Mutual  Life  Ins.  Co.  v.  Sturges. 

Mr.  B.  Gummere,  for  appellant. 

The  proceedings  on  the  part  of  the  complainant  are  in  con- 
formity to  the  statute  and  rules  and  practice  of  the  court.  Carew 
V.  Johmton,  2  Sch.  &  Lef.  S80  ;  Smith  v.  Kay,  7  H.  L.  Cas.  750. 

Under  these  circumstances,  the  decree  being  not  only  enrolled, 
but  executed,  the  rule  of  practice  is  that  the  decree  cannot  be 
altered  except  by  a  bill  of  review.  '2  Dan.  Ch.  Pr.  (^th  ed.) 
1030,  note  8  ;   Carpenter  v.  Mutchmore,  2  McCart.  123. 

The  nominal  ground  of  the  application  is  surprise ;  but  there 
is  no  pretence,  even  in  the  allegations  of  the  petition,  that  there 
was  a  surprise  practiced  upon  the  defendants,  within  the  legal 
meaning  of  the  term. 

But  it  is  said  that  Henry  C.  Knubel,  who,  by  force  of  the 
bankrupt  act,  is  the  assignee  of  the  interest  of  James  S.  Sturges 
and  of  the  petitioner,  Thomas  S.  Sturges,  in  the  second  mort- 
gage, was  not  made  a  party  to  the  suit,  and  had  no  notice  or 
knowledge  of  it.  Lathrop  v.  Drake,  30  Leg.  Int.  IJfl ;  Cogdell 
V.  Exum,  10  B.  R.327;  Norton  v.  De  Villeneuve,  18  B.  E.304.; 
Bump's  Bank.  795. 

Two  distinct  matters  of  alleged  fraud  appear  on  the  face  of  the 
petition — 

1 .  The  first  is  charged  with  some  distinctness,  and  it  is,  in  effect, 
that  Mr.  Burnham  had  presented  to  the  master,  and  had  sworn 
before  him  to  the  receipt  of  a  letter  from  one  of  Sturges  &  Co., 
which  they  had  never  seen,  and  that  he  had  presented  their 
mortgage  to  the  master  without  any  request  from  either  of  them, 
and  without  any  authority,  express  or  implied,  and  without  their 
knowledge  or  consent. 

2.  The  second  is  set  up  as  an  inference  of  constructive  fraud,  in 
that  the  contract  of  subordination  of  the  Sturges  &  Co.  mortgage 
was  made  after  the  death  of  Thomas  T.  Sturges,  the  elder,  and 
after  a  moiety  of  said  mortgage  had  vested  in  his  executors  and 
legatees.  Kerr  on  Fraud  {Bump's  ed.)  374  /  Bigelow  on  Estop- 
pel 4£5;  Stewart  v.  Lehigh  Valley  B.  R.  Co.,  9  Vr.  505,  524,. 

Where  one  of  two  innocent  parties  must  suffer,  the  one  who,  by 
his  act  or  neglect,  has  enabled  the  fraud-doer  to  commit  the  fraud, 
is  liable.     Kerr  on  Fraud  {Bump's  ed.)  138,  139. 


330         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Mutual  Life  Ins.  Co.  v.  Sturges. 

The  mortgage  of  Sturges  &  Co.  was  a  chose  in  action,  and  the 
legal  title  thereto  vested  in  James  S.  Sturges,  the  survivor  of 
that  firm.  Goio  on  Part.  131,  31^8 ;  Story  on  Part.  §  3^6  ; 
People  V.  Keyser,  S8  N.  Y.  226,  235;  Holhrooh  v.  Lachey,  13 
Mete.  132 ;  Shreve  v.  Joyce,  7  Vr.  44-,  4-S ;  Murray  v.  Blatcli- 
ford,  1  Wmd.  683;  Bogert  v.  Eertell,  4  Hill  4:92,  503;  Stuy- 
vesant  v.  Hall,  2  Barb.  Ch.  151,  160;  2  Wms.  Exrs.  {6th  Am. 
ed.)  1013,  1014;  Jones  on  3Iortgages  §  796. 

Mr.     Theo.  Little  for  respondents. 

The  opinion  of  the  court  was  delivered  by 

Dixon,  J. 

This  appeal  is  taken  from  an  order  made  upon  the  opinion  of 
the  vice-chancellor,  that  an  interlocutory  decree  in  foreclosure  and 
all  proceedings  subsequent  thereto,  including  the  sheriff's  sale, 
be  set  aside,  so  as  to  admit  Henry  C.  Knubel,  assignee  iu  bank- 
ruptcy of  James  S.  Sturges,  as  a  defendant,  and  to  permit  him 
and  the  executors  of  Thomas  T.  Sturges,  deceased,  to  plead, 
answer  or  demur  to  the  bill. 

Before  the  filing  of  the  petition,  in  accordance  with  which  this 
order  was  made,  conveyances  of  the  property  sold  had  been 
delivered  by  the  sheriff  to  the  purchasers,  who  were  the  com- 
plainants as  to  part,  and  a  stranger  to  the  suit  as  to  the  residue. 
Neither  the  petition  nor  the  order  takes  any  notice  of  the  sale 
to  the  stranger,  nor  is  he  a  party  to  the  appeal.  His  claims, 
therefore,  need  not  be  considered  here. 

The  fact  that  the  sheriff's  sale  had  been  perfected  by  delivery 
of  a  deed,  is  not  an  insuperable  bar  to  the  vacation  of  the  pro- 
ceedings. 

In  support  of  this  proposition,  it  is  unnecessary  to  say  more 
than  is  said  by  Chancellor  Zabriskie,  speaking  for  this  court,  in 
National  Bank  of  the-  Metropolis  v.  Sprague,  6  C.  E.  Gr.  458, 
where,  by  citation  of  numerous  cases  iu  England,  New  York 
and  New  Jersey,  he  shows  it  to  be  the  settled  practice  in  courts 


6  Stew.]  NOVEMBER  TERM,  1880.  331 

Mutual  Life  Ids.  Co.  v.  Sturges. 

of  equity,  that,  for  sufficient  cause,  sales  under  their  decrees  may 
be  set  aside  by  an  order  in  the  original  suit,  as  well  after  as  before 
confirmation  and  conveyance,  and  that  the  allowance  or  denial 
of  such  an  order  is  a  proper  subject  for  appeal,  either  by  the 
parties  to  the  suit  or  by  the  purchaser. 

Usually  the  ground  upon  which  the  court  has  proceeded  to 
vacate  a  sale,  has  been  some  impropriety  attending  the  sale ;  but 
this  is  not  the  only  ground.  In  Camjjhell  v.  Gardner,  3  Stock. 
4^S,  Chancellor  Williamson  set  aside  a  sale  after  deed  deliv- 
ered, because,  under  peculiar  circumstances,  the  mortgagees  had 
not  been  apprised  of  the  pendency  of  the  suit. 

In  the  case  first  mentioned.  Chancellor  Zabriskie  intimates 
that  perhaps  the  opening  of  a  sale  and  decree  for  the  purpose  of 
letting  in  a  defence,  is  in  the  discretion  of  the  chancellor  so  far 
that  no  appeal  would  lie.  But  this  intimation  has  not  been 
adopted  by  this  court.  The  right  of  appeal  depends  upon 
whether  the  appellant  is,  in  a  legal  sense,  aggrieved  [Green  v. 
Blackwdl,  6  Stew.  Eq.  768) ;  and  that  must  be  determined  by  con- 
sidering, not  upon  what  grounds  the  chancellor  has  proceeded, 
but  what  effect  his  action  has  upon  the  claims  of  the  appellant. 
All  the  authorities  concede  that  an  order  setting  aside  a  sale  for 
illegality  attending  it  is  appealable.  The  result  to  the  purchaser 
is  the  same,  if  it  be  set  aside,  to  let  in  a  defence.  His  definite 
rights,  under  either  his  contract  to  buy  or  his  conveyance,  are 
finally  destroyed  in  both  cases.  Such  claims  do  not  depend 
upon  mere  discretion,  but  must  be  protected  or  overthrown 
according  to  legal  and  equitable  principles.  Their  owner  is 
aggrieved  by  every  order  in  chancery  which  substantially  impairs 
them,  and  may  seek  redress  for  such  grievance  by  appeal  to  this 
court. 

In  Smith  v.  Alton,  7  C.  E.  Gr.  572,  an  appeal  was  taken  from 
an  order  of  the  chancellor,  opening  the  decree  to  sell  in  a  fore- 
closure suit,  setting  aside  the  sheriff's  sale  and  admitting  the 
mortgagees  to  make  defence.  The  appeal  was  entertained  and 
the  order  affirmed. 

In-  Cawley  v.  Leonard,  1  Stew.  Eq.  4-67,  the  appellants  had  peti- 
tioned for  similar  relief  three  years  after  sheriff's  conveyances 


332         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 


Mutual  Life  Ins.  Co.  v.  Sturges. 


were  executed,  and  the  chancellor  had  refused  the  prayer.  On 
appeal  to  this  court,  the  relief  asked  for  was  given,  on  the  ground 
of  surprise  and  merits. 

These  precedents  are  controlling,  both  upon  the  power  of  the 
court  of  chancery  to  raake  the  order  complained  of,  and  upon 
the  right  of  the  appellant  to  seek  its  reversal  here. 

This  brings  us  to  a  consideration  of  the  propriety  of  the  order 
made  below. 

The  reasons  upon  which  it  is  based  are,  that  the  petitioners 
have  merits  which,  without  laches  on  their  part,  have  not  been 
presented,  and  that  the  allegations  of  the  bill,  upon  which  the 
chancellor  assumed  to  pass  upon  those  merits,  are  too  vague  to 
support  the  decree. 

First,  as  to  merits. 

In  1857,  the  mortgaged  premises  were  encumbered  by  a  small 
mortgage  held  by  Mrs.  Lamson,  and  by  a  second  mortgage  for 
$2,000,  without  interest,  made  to  "  Sturges  &  Co.,  a  firm  doing 
business  in  the  city  of  New  York,  and  composed  of  Thomas  T. 
Sturges  and  James  S.  Sturges."  The  premises  had  been  pur- 
chased by  Thomas  T.  and  James  S.  Sturges  as  a  home  for  their 
half-brotlier,  Joseph  H.  Sturges,  and  their  mortgage  was  made 
and  kept  alive  for  the  avowed  object  of  preserving  the  property 
as  his  family  residence.  This  is  shown  both  by  the  letter  of 
James  to  Mr.  Buruham,  the  complainants'  counsel,  in  January, 
1869,  and  by  the  testimony,  in  these  proceedings,  of  Thomas  T. 
Sturges,  jun.,  the  son  and  executor  of  Thomas,  deceased. 

In  1869,  the  necessities  of  Joseph  H.  Sturges  wore  such  that 
he  required  $1,000  to  take  up  the  Lamson  mortgage,  and  meet 
other  demands.  On  application  by  Mr.  Burnham  to  Sturges  & 
Co.,  it  was  arranged  that  the  complainants  should  loan  this  $1,000, 
and  should  have  a  first  mortgage  therefor;  and  accordingly  the  loan 
was  made,  the  Lamson  mortgage  was  paid  off  and  canceled,  the 
$2,000  mortgage  was  canceled,  a  mortgage  for  $1,000,  dated  Janu- 
ary 1st,  1869,  and  recorded  January  6th,  1869,  was  executed  by 
Joseph  to  the  complainants,  and  a  mortgage  for  $2,000,  without 
interest,  to  Sturges  &  Co.,  dated  February  24th,  1869,  was  executed 
by  Joseph  and  recorded.     This  last  mortgage  was  drawn  by  Mr. 


6  Stew.]  NOVEMBER  TERM,  1880.  333 

Mutual  Life  Ins.  Co.  v.  Sturges. 

Biirnham  at  a  request  by  letter,  signed  "  Sturges  &  Co.,"  and,  in 
tlie  description  of  the  parties  of  the  second  part,  was  copied  from 
the  earlier  $2,000  mortgage.  In  fact,  the  firm  of  Sturges  &  Co. 
had  been  changed  in  1864,  by  taking  into  it  Thomas  T.  Sturges, 
jun.  and  Peter  D.  Sturges,  the  sons,  respectively,  of  the  older 
members,  but  the  capital  stock  remained  the  propeily  of  the 
fathers  only,  and  it  is  not  claimed  that  the  sons,  as  members  of 
the  firm,  ever  had  any  interest  in  the  mortgage.  This  change 
was  not  known  to  Mr.  Burnham. 

In  1875,  a  further  loan  of  $2,500  was  needed  by  Joseph,  and 
the  complainants  were  willing  to  grant  it,  provided  a  first  mort- 
gage for  $3,500  could  be  substituted  for  their  $1,000  mortgage. 
In  order  to  make  this  arrangement,  Mr.  Burnham  again  called 
upon  Sturges  &  Co.,  at  their  old  place  of  business,  and  an  inter- 
view was  had,  which  Thomas  T.  Sturges,  jun.,  describes  as 
follows: 

"He  told  me  about  some  troubles  that  Joseph  H.  Sturges  had,  out  here  at 
Morris  Plains,  and  that  he  would  have  to  raise  some  more  money  on  his  place, 
as  they  were  going  to  sell  or  do  something  with  his  place  under  judgment,  or 
something  like  that ;  and  if  we  would  allow  our  mortgage  to  stand  second,  he 
could  get  the  money  from  the  Mutual  Life  Insurance  Company;  I  told  him  I 
had  no  objections  and  was  willing  to  do  so,  and  he  then  said  if  I  would  write 
him  a  note  or  a  letter  to  that  effect,  it  would  be  sufficient ;  I  wrote  such  a  letter 
to  Mr.  Burnham." 

The  following  is  a  copy  of  the  letter  : 

"  31  SoTTTH  St.,  New  Yobk,  May  20th,  1875, 
"  F.  G.  Burnham,  Esq.,  Morristown,  N.  J. : 

"  Dear  Sir — Your  note  of  yesterday,  in  regard  to  mortgages  on  Mr.  Joseph 
H.  Sturges's  farm  at  Morris  Plains,  N.  J.,  came  duly  to  hand  and  contents 
noted. 

"  In  reply,  I  would  beg  to  say  that  your  proposition  meets  with  approval, 
and  all  that  can  be  said  is,  for  you  to  go  ahead  and  carry  it  out. 

"As  I  understood  it,  the  Mutual  Life  will  then  hold  a  first  mortgage  of 
13,500,  and  the  old  firm  of  Sturges  &  Co.  will  hold  a  second  mortgage  for  the 
amount  of  their  present  one,  with  accrued  interest  to  date  of  whenever  the  agree- 
ment is  carried  out. 

"Hoping  soon  to  hear  from  you  that  everything  has  been  satisfactorily 
settled, 

"  I  remain  yours  resp'ly, 

"  T.  T.  Sturges,  Jun." 


334         COURT  OF  ERRORS  AXD  APPEALS.  [33  Eq. 

Mutual  Life  Ins.  Co.  v.  Sturges. 

The  approval  referred  to  in  this  letter,  Thomas  explains  as 
being  the  approval  of  himself  and  of  James  S.  Sturges,  with  whom 
he  consulted  about  the  proposition. 

In  the  meantime,  the  firm  of  Sturges  &  Co.  had  again  changed 
by  the  withdrawal  of  Thomas  T.  Sturges  in  1869  or  1870. 
Shortly  afterwards,  in  1870,  he  had  died,  leaving  his  widow  and 
his  son  Thomas  his  executors,  and  his  widow  during  her  life,  and 
his  six  children  after  her  death,  his  legatees.  His  estate  was 
large,  and  its  management  devolved  almost  wholly  upon  Thomas, 
the  widow,  as  co-executrix,  taking  but  little  part  therein. 

These  facts  were  not  known  to  Mr.  Burnham,  save  that  he 
had  received  an  indefinite  impression  of  some  change  in  the  firm. 

In  accordance  with  the  arrangement,  the  advance  of  §2,500 
was  made  by  the  complainants,  a  new  mortgage  for  $3,500,  dated 
May  31st,  1875,  was  executed  by  Joseph  to  the  complainants, 
the  old  $1,000  mortgage  was  canceled,  and  a  mortgage  for  $2,000, 
dated  May  21st  1875,  in  lieu  of  the  other  $2,000  mortgage,  was 
signed  by  Joseph,  but,  because  of  Mr.  Burnham's  impression  of 
some  change  in  the  firm,  the  name  of  the  mortgagee  was  left 
blank  until  he  should  learn  what  was  to  be  inserted.  For  this 
reason,  the  $2,000  mortgage  of  1869,  which  had  always  been  in 
Mr.  Burnham's  possession,  was  not  tlien  canceled,  and  the  matter, 
being  temporarily  laid  aside,  was  then  forgotten,  and  remained 
in  statu  quo  until  the  complainants'  bill  for  foreclosure  was  filed, 
about  January,  1877. 

The  petitioners'  merits  depend  upon  whether,  under  these 
facts,  their  mortgage  is  entitled  to  priority  over  the  complain- 
ants' lien  for  $3,500.  By  the  bill  it  is  averred,  and  by  the 
decree  it  is  adjudged,  to  be  subsequent  to  it. 

Beyond  all  controversy,  the  complainants  advanced  the  whole 
$3,500  upon  the  understanding,  arrived  at  in  good  faith  and  with 
.  reasonable  diligence,  that  their  Jien  therefor  should  be  first.  Tiiis 
gives  them  a  strong  claim  in  equity  to  insist  upon  such  priority 
against  any  who  do  not  stand  upon  a  more  equitable  footing. 
As  to  $1,000  of  their  debt,  no  one  has  any  equity  against  them, 
because,  for  so  much,  their  priority,  both  at  law  and  equity,  was 
undisputed,  and  if,  by  the  cancellation  of  their  $1,000  mortgage, 


6  Stew.]  NOYEMBER  TERM,  1880.  335 

Mutual  Life  Ins.  Co.  •;;.  Sturges. 

that  priority  at  law  was  lost,  through  their  honest  mistake  as  to 
the  completeness  of  the  arrangment  pursuant  to  which  they  can- 
celed it,  equity  would  relieve  them  from  the  consequences  of  that 
mistake  against  the  petitioners,  who  have  not  changed  their  posi- 
tion because  of  it.  It  is  clear,  also,  that  the  complainants'  mort- 
gage is  entitled  to  priority  for  the  whole  sum,  so  far  as  the  agree- 
ment of  James  S.  Sturges,  surviving  creditor,  and  that  of  Thomas 
T.  Sturges,  jun.,  managing  executor  of  the  deceased  creditor,  can 
give  it,  for  their  consent  to  such  precedence  is  admitted.  With- 
out inquiring  into  the  effect  which  this  agreement  of  the  surviv- 
ing creditor  ought  to  have  upon  the  interest  of  his  deceased 
partner,  it  undoubtedly  must  defeat  his  own  claim  to  priority, 
and  hence  that  of  his  assignee,  who  derived  his  title  from  James 
some  months  after  the  complainants  had  loaned  their  money  on 
the  strength  of  James's  agreement.  The  assignee,  therefore, 
clearly  has  no  merits. 

With  equal  conclusiveness,  the  contract  of  Thomas  T.  Sturges, 
jun.,  the  managing  executor  of  his  father's  estate,  disposes  of  the 
claims  of  that  estate,  unless  fraud  is  fastened  upon  the  com- 
plainants. For  it  is  well  settled  that  acts  done  by  one  of 
several  executors,  which  relate  to  the  delivery,  gift,  sale  or  release 
of  the  testator's  personalty,  are  deemed  the  acts  of  all,  and  bind 
the  estate  accordingly.  Coote  on  Moi'tgages  511 ;  2  Wms.  Exrs. 
*94.7;  Ex  parte  Bigby,  19  Ves.4.63;  Wheeler's  Exrs.  v.  Wheeler, 
9  Cow.  84-;  Shreve  v.  Joyce,  7  Vr.  44- 

Here,  the  testator's  widow  left  the  active  administration  of  the 
estate  to  her  co-executor,  as  she  had  a  clear  legal  right  to  do 
{Schenck  v.  Schenck,  1  C.  E.  Gh\  174),  and  when  he  consented  to 
postpone  the  lien  of  the  testator's  mortgage,  and  the  complainants 
thereupon  advanced  their  money,  that  consent  was  as  obligatory 
as  if  both  executors  had  signed  it.  Stuyvesant  v.  Hall,  2  Barb. 
Ch.  151. 

Indeed,  the  avowed  purpose  for  which  the  mortgage  was  held, 
the  strait  in  which  the  mortgagor  stood,  and  the  fact  that  the 
surviving  obligee  and  the  managing  executor  so  readily  agreed 
to  give  the  complainants  priority,  make  it  highly  probable  that 
if  the  executrix  did  not  consent,  it  was  merely  because  she  was 


336         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Mutual  Life  Ins.  Co.  v.  Sturges. 

not  asked.  Thomas,  her  son,  who  was  living  with  her  at  the 
time,  says  he  believes  he  did  not  consult  her. 

Is  there,  then,  any  ground  for  charging  fraud  upon  the  com- 
plainants? 

The  only  fraudulent  design  which  it  is  possible  to  suggest  is 
a  purpose  to  deprive  the  beneficiaries  under  the  will  of  Thomas 
T.  Sturges,  deceased,  of  their  equitable  rights  in  the  priority  of 
the  $2,000  mortgage.  Mr.  Burnham  was  the  sole  representative 
of  the  complainants  in  the  transaction.  If,  therefore,  such  a 
purpose  is  to  be  attributed  to  the  complainants,  it  must  be  be- 
cause he  entertained  it.  The  first  step  towards  making  it  out, 
and  a  sine  qua  non,  is  to  show  that  he  had  knowledge  of  the  ex- 
istence of  such  beneficiaries.  But  of  this  fact  there  is  not  a  par- 
ticle of  proof.  To  the  contrary,  he,  on  his  oath,  declares  that  he 
had  not  the  slightest  notice  or  information  that  the  mortgage  was 
held  by  any  other  parties  than  Sturges  &  Co.,  and  that  he  never 
heard  of  the  death  of  Thomas  T.  Sturges  until  long  after  the 
money  had  been  advanced,  and  just  before  the  filing  of  the  bill. 
The  oath  of  this  gentleman  is  entitled  to  stand  against  much  op- 
posing evidence ;  uncontradicted,  as  it  is  here,  it  leaves  no  shadow 
of  doubt.  The  members  of  this  court  are  unanimously  of  opinion 
that  his  integrity  is  not  to  be  questioned.  The  executor  Thomas, 
also,  speaking  of  his  own  conduct,  says,  I  believe  truly,  "  what  I 
did,  I  did  in  all  good  faith,  supposing  it  was  perfectly  right." 
I  see  no  reason  to  doubt  the  honesty  of  any  of  the  parties  in  that 
transaction. 

We  are  therefore  quite  agreed  that  by  the  case  made  on  this 
petition,  these  petitioners  have  no  merits.  This  renders  it  un- 
necessary to  discuss  the  topic  of  surprise  without  laches ;  but  our 
conclusion  upon  that  point  is  also  against  the  petitioners. 

Finally,  it  was  adjudged  below  that  the  averments  in  the  bill, 
relied  on  as  setting  out  the  complainants'  right  to  preference,  are 
so  vague  and  uncertain  that  when  confessed  by  the  defendant's 
default  and  proved  before  the  master,  they  did  not  warrant  the 
decree  of  priority. 

The  same  precision  of  statement  that  is  required  in  pleadings 
at  law  has  never  been  attained  in  bills  in  equity,  but  such  degree 


6  Steay.]  NOVEMBER  TERM,  1880.  337 

Mutual  Life  Ins.  Co.  v.  Sturges. 

of  certainty  should  be  adopted  as  may  give  the  defendant  full 
information  of  the  case  he  is  called  upon  to  answer.  1  Dan. 
Ch.  Pr.  373  ;  Houghton  v.  Reynolds,  2  Hare  264-,  ^^^^  note. 

The  bill  alleges  that  the  contract  to  subordinate  the  mortgage 
of  Sturges  &  Co.  to  the  complainant,  was  made  by  that  firm,  or 
by  their  survivors  and  legal  representatives,  and  then  avers  that 
the  survivor  of  the  firm  was  James  S.  Sturges,  and  that  the  legal 
representatives  of  the  deceased  partner  were  his  executors,  Susan 
and  Thomas  T.  Sturges,  jun.,  and  these  persons  only  are  made 
defendants  on  behalf  of  said  firm.  These  statements  fairly 
amount  to  an  assertion  that  the  contract  was  made  by  the  firm, 
or  by  James  and  the  executors  of  Thomas.  The  only  uncer- 
tainty about  it  is,  that  it  does  not  specify  which  of  the  two  con- 
tracted. Such  alternative  averments  are  not  admissible  by  the 
strict  rules  of  common  law  pleading,  but  reference  to  any  book 
of  equity  forms  will  show  that  there  they  are  not  infrequent. 
In  actions  at  law  against  the  survivors  of  a  firm,  or  against  ex- 
ecutors, the  declaration  would  state  the  several  possible  promises 
in  separate  counts,  but,  upon  the  whole  pleading,  the  defendant 
would  be  apprised  of  the  ground  of  suit  with  no  more  accuracy 
than  this  bill  affords.  I  think,  even  on  demurrer,  a  court  would 
hesitate  to  adjudge  this  complaint  bad  for  uncertainty. 

But  where,  as  here,  after  regular  proceedings  against  the  de- 
fendants, the  party  has  been  put  to  his  proofs,  and  a  final  decree 
in  his  favor  has  been  made  and  executed,  it  is  unprecedented  to 
permit  such  an  objection  to  prevail.  Objections  to  pleadings 
which  involve  no  substantial  interests  are  not  allowed  even  upon 
final  hearing.     Freeman  v.  Scofield,  1  C.  E.  Gh:  S8. 

And  it  is  then  too  late  to  complain  of  mere  want  of  precision 
in  the  bill,     Smith  v.  Kay,  7  H  L.  Cas.  750. 

The  order  appealed  from  should  be  reversed,  with  costs. 

Decree  unanimously  reversed. 
22 


838         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Putnam  v.  Clark. 

Adah  A.  Putnam  et  al.,  appellants, 

V. 

Lydia  a.  Clark  et  al.,  respondents. 

1.  A  party  who  files  a  bill  alleging  that  a  paper  made  by  him  has  been  altered 
since  its  execution,  and  asking  to  have  it  canceled,  must  prove  the  fact  of  its 
subsequent  alteration. 

2.  Such  a  party  does  not  occupy  the  same  position  as  if  he  were  resisting  a 
claim  founded  upon  such  altered  instrument,  and  he  cannot  successfully 
ground  his  right  to  a  cancellation  of  it  upon  a  technical  presumption  of  a  false 
alteration  arising  from  a  suspicious  circumstance  merely. 


On  appeal  from  a  decree  of  the  chancellor,  reported  in  Put- 
nam V.  Clark,  £  Stew.  Eq.  4,12. 

Mr.  Peter  Pentley  and  Mr.  Cortlandt  Parker,  for  appellant. 

I. 

(a)  Suspicious  circumstances  being  shown  to  be  connected 
with  the  alteration,  it  is  necessary  for  the  parly  relying  on  the 
instrument  to  explain  satisfactorily  the  alteration. 

(6)  The  circumstances  of  this  case  make  the  alteration  appear 
not  only  suspicious,  but  also  probably  fraudulent. 

(c)  There  has  been  no  explanation  of  the  alteration  by  the  party 
relying  on  the  instrument.  The  decree,  therefore,  should  be  re- 
versed. Hunt  V.  Gray,  6  Vr.  227;  1  Whart.  Ev.  §  629;  Bailey 
V.  Taylor,  11  Conn.  531;  Beaman  v.  Russell,  20  Vt.  205,  213; 
1  Ch-eenl.  Ev.  §  564-;  Matthews  v.  Coulter,  9  Mo.  896 ;  Ramsey 
V.  McCue,  21  Gratt.  3^9;  Wilde  v.  Armsby,  6  Gush.  SU;  Ran- 
kin V.  Blackwell,  2  Johns.  Cos.  198  ;  Tillou  v.  Clinton  and  Esssex 
Ins.  Co.,  7  Barb.  564;  Harker  v.  Gustiv,  7  Hal.  4^. 

II. 

From  the  proofs  before  the  court,  it  will  be  presumed  that  the 
original  assignment  is  in  the  defendants'  possession,  and  that  it 


6  Stew.]  NOVEMBER  TERM,  1880.  339 

Putnam  v.  Clark. 

is  concealed  by  them.  The  most  unfavorable  inference  is  to  be 
drawn  against  them.  1  Greenl.  Ev.  §  659 ;  S  Dan.  Ch.  Fr. 
1817 ;  1  Whart.  Ev.  §  U? ;  Greenl.  Ev.,  §  658;  McGuire  v. 
Mobile,  4£  Ala.  689;  Holbrooh  v.  Trustees,  28  III.  187 ;  Chicago 
&  N.  W.  R.  R.  Co.  V.  Ingersoll,  65  III.  399;  Preslar  v.  Skill- 
worth,  37  Ala.  402 ;  Mason  v.  Tallman,  34,  Me.  472;  2  Whart. 
Ev.  §  1267. 

III. 

When  the  mortgage  to  which  this  mortgage  had  been  assigned 
as  collateral  by  Barrett  was  paid,  Barrett  became  entitled  to  this 
mortgage,  and  he  has  never  lost  that  right ;  he  was  at  best  but 
a  trustee  for  the  complainant,  and  she  is  entitled  to  all  he  was 
entitled  to.     Paulin  v.  Kaighn,  5  Dutch.  4^0. 

IV. 

The  defendant  Clark's  executors  are  not  entitled  to  relief 
under  their  cross-bill,  i.  e.,  to  have  the  complainant  pay  the 
municipal  charges  which  were  upon  the  property  at  the  time  the 
premises  were  purchased  by  Hosea  F.  Clark.  Shinn  v.  Budd, 
1  McCart.  234;   Garwood  v.  Eldridge,  1  Gr.  Ch.  160. 

Mr.  Hamilton  Wallis,  for  respondent 

I.  Redfield  was  a  purchaser  of  the  bond  and  mortgage  for 
value  and  without  notice,  or  was,  at  all  events,  subrogated  to 
the  rights  of  the  insurance  company. 

II.  Appellant  cannot  prevail  without  proving  the  assignment 
to  Barrett  to  be  a  forgery,  and  there  is  no  such  proof.  Kerns 
V.  Swope,  2  Watts  75  ;  Harher  v.  Gustin,  7  Hal.  45. 

III.  If  not  a  forgery,  the  only  ground  remaining  to  appel- 
lant is  that  the  respondents  Redfield  and  Clark  are  bound  by 
the  equity  existing  between  the  appellant  and  Barrett. 


340        COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Putnam  v.  Clark. 
Messrs.  Collins  &  Corbin,  for  defendants. 

I.  Hosea  F.  Clark  was  a  bona  fide  purchaser  for  value  with- 
out notice,  of  the  bond  and  mortgage,  and  equity  will  protect 
him  and  his  representatives.  Portarl'mgton  v.  Soulby,  6  Sim.  356, 
7  Id.  28  ;  Dawson  v.  Prince,  2  De  G.  &  J.  4-1 ;  Pierce  v.  Faunce, 
Jf7  Me.  607 ;  2  Lead.  Cas.  in  Eq.  57,  and  cases  cited;  Living- 
ston V.  Dean,  2  Johns.  Ch.  ^79;  Wilson  v.  Hill,  2  Beas.  I4B  ; 
Morton  v.  Rose,  2  Wash.  C.  C.  233;  Woodruff  v.  Depue,  1  Mc- 
Cart.  168  ;  Losey  v.  Simpson,  3  Stock.  24-6  ;  Danbury  v.  Robin- 
son, 1  McCart.  213 ;  Bloomer  v.  Henderson,  8  Mich.  395 ;  Polls 
v.  Blachcell,  4-  Jones  Eq.  58 ;  Starr  v.  Haskin,  11  C.  E.  G.  414  / 
Mott  V.  Clark,  9  Barr  S99 ;  Van  Hook  v.  Somerville,  1  Hal. 
Ch.  633;  Vredenburgh  v.  Burnet,  4  Stew.  Eq.  229 ;  Kerns  v. 
Swope,  2  Watts  75 ;  Harker  v.  Gusten,  7  Hoist.  4^ ;  Jones  v. 
Smith,  1  Hare  43. 

II.  The  Clark  defendants  have  good  presumptive  title  to  the 
bond  and  mortgage,  and  the  complainant  has  not  overcome  it. 
Stew.  Dig.  770  §  150;  Cumberland  Bank  v.  Hall,  1  Hal.  216; 
N.  R.  Meadow  Co.  v.  Shrewsbury  Church,  2  Zab.  4^7. 

III.  The  complainant's  suit  cannot  prevail,  because  of  her 
gross  negligence.  Westervelt  v.  Scott,  3  Stock.  80 ;  Van  Hook 
V.  Somerville,  1  Hal.  Ch.  633;  Peabody  v.  Fenton,  S  Barb, 
Ch.  451 ;  Trenton  Banking  Co.  v.  Woodruff,  1  Gr.  Ch.  117 ; 
Hoff.  Ch.  Pr.  306. 

IV.  Where  there  are  equal  equities  possession  must  prevail. 
Archer  v.  Bank  of  England,  Doug,  637,  639  ;  Wells  v.  Archer, 
10  S.  &  R.  412  ;  Ellis  V.  Kreutzinger,  27  Mo.  311. 

V.  The  defendants  must  not  suffer  because  the  original  assign- 
ment, which  is  said  to  have  been  altered,  is  missing.  Hoffman's 
Ch.  Prao.  306. 

VI.  As  to  the  cross-bill.  Shinn  v.  Budd,  1  McCart.  234; 
Garwood  v.  Eldridge,  1  Gr.  Ch.  145;  Young  v.  Hill,  4  Steio. 
Eq.  4£9. 


6  Stew.]  NOVEMBER  TERM,  1880.  341 


Putnam  v.  Clark. 


The  opinion  of  the  court  was  delivered  by 


Reed,  J. 

The  bill  in  this  suit  is  filed  by  Adah  A.  Putnam  and  her  hus- 
band, to  secure  the  cancellation  of  a  certain  assignment  of  a  bond 
and  mortgage,  which  assignment  purports  to  have  been  made  by 
the  complainants  to  one  William  C.  Barrett. 

It  appears  that  in  April,  1871,  Lydia  A.  Putnam  was  the 
owner  of  a  bond  and  mortgage  for  $12,000,  made  to  her  by  one 
Jane  M.  Mackey.  She  was  anxious  to  raise  money  by  means  of 
a  sale  of  this  security.  Her  attorney  for  many  years  had  been 
William  C.  Barrett,  of  New  York  city.  She  communicated  her 
wish  to  him,  and  he  undertook  to  negotiate  the  sale  of  this  mort- 
gage. She  says,  in  her  bill,  that  he  represented  to  her  that  he 
had  a  client,  whose  name  was  William  C.  Ramsey,  who  was 
making  investments,  and  who  would  take  this  mortgage.  It 
appears  that  she  and  her  husband  executed  an  assignment  of  this 
mortgage,  acknowledged  by  herself  and  husband,  and  that  the 
assignment  was  left  in  the  hands  of  Mr.  Barrett.  The  bill  states 
that,  subsequently,  Barrett  informed  the  complainants  that  Ram- 
sey had  not  the  money,  and  that  he,  Barrett,  had  not  been  able 
to  procure  it.  The  assignment  remained  in  Barrett's  possession, 
he  paying  the  interest  upon  the  said  mortgage  to  Mrs.  Putnam. 

In  March,  1875,  Barrett  assigned  this  mortgage,  as  collateral 
security,  to  the  Relief  Fire  Insurance  Company  of  New  York. 
They  re-assigned  it  to  one  Redfield,  and  he  to  the  respondent, 
Lydia  A.  Clark. 

The  complainants  became  aware  of  the  assignment  by  Barrett 
to  the  Relief  Fire  Insurance  Company,  after  Barrett  had  ab- 
sconded, and  the  complainants  had  sought  in  vain  for  their  mort- 
gage among  his  papers. 

Their  contention  in  this  suit  is,  that  Barrett  liad  no  title  in  the 
mortgage  which  he  assigned  to  the  fire  insurance  company;  that 
the  assignment  which  they  executed  at  the  time  Ban-ett  was  to  raise 
money  by  the  sale  of  the  mortgage  was  made  to  William  C.  Ram- 
sey, the  person  from  whom  the  money  was  expected;  that  the  name 
William  C.  Ramsey  was  subsequently  fraudulently  changed  to 


342        COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Putnam  v.  Clark. 

William  C.  Barrett,  and  that  respondent's  title  to  this  mortgage 
rests  upon  this  forged  assignment. 

The  prayer  of  the  bill  is,  that  the  mortgage  now  in  the  posses- 
sion of  the  respondents  be  delivered  to  complainants,  and  the 
assignment  by  Barrett  be  canceled. 

It  thus  appears  that  the  question  which  now  presses  for  solu- 
tion is  whether  the  complainants  have  shown  an  alteration  in  the 
assignment  which  avoids  it. 

The  original  assignment  has  not  been  produced,  and  the  efforts 
of  the  complainants  to  discover  it  have  been  unsuccessful.  Nor 
does  it  appear  that  the  assignment  ever  came  to  the  hands  of 
Mrs.  Clark.  The  record  of  the  assignment  has  been  offered. 
The  record  shows  an  assignment  acknowledged  before  Mr.  Net- 
tleton,  a  commissioner  of  New  York,  and  witnessed  by  him. 
Underneath  his  name,  and  affixed  to  the  attestation  clause,  are 
the  words,  "  The  words  *  C.  Barrett,  New  York,'  written  over  an 
erasure." 

Mr.  Nettleton  was  sworn,  and  says  that  he  has  no  recollection 
of  this  particular  assignment.  He  says  that  when  he  has  occa- 
sion to  note  an  alteration,  his  habit  is  to  make  the  notation  over 
and  not  under  his  signature.  He  further  says  that  when  he  de- 
sires to  make  such  a  notation,  after  he  has  signed  his  name,  he 
makes  it  over  his  name,  and  if  there  is  not  space,  he  erases  his 
name,  makes  the  notation,  and  re-writes  his  signature  under  it. 
He  admits  that  he  has  sometimes  forgotten  to  write  his  name  as 
a  witness.  The  otlier  witness,  Mr.  Putnam,  has  no  recollection 
at  all  of  making  the  assignment.  There  is  no  evidence  offered 
on  the  part  of  the  respondents  relative  to  the  execution  of  the  as- 
signment. 

The  contention  of  the  counsel  of  appellants  is,  that  there  is,  in 
connection  with  the  proof  of  alteration,  such  suspicious  features 
as  throw  upon  the  respondents  the  burden  of  showing  that  the 
alteration  was  made  before  or  at  the  time  of  execution ;  that  the 
respondents,  having  failed  to  prove  the  time  and  manner  of  the 
alteration,  therefore  the  cancellation  of  the  instrument  should  be 
decreed. 

The  question  as  to  the  burden  of  proof  in  cases  involving  the 


6  Stem-.]  NOVEMBER  TERM,  1880.  343 

Putnam  v.  Clark, 

validity  of  altered  papers,  usually  arises  where  the  actor  grounds 
his  right  of  action  upon  the  altered  instrument.  In  this  class  of 
causes,  by  a  rule  long  settled  in  this  state,  no  presumption  arises 
to  invalidate  an  instrument  because,  from  inspection,  an  alteration 
appears  to  have  been  made.  Cumberland  Bank  v.  Hall,  1  Hal. 
215 ;  North  River  Meadow  Co.  v.  Shrewsbury  Church,  2  Zab. 
J^I^;  Hunt  V.  Gray,  6  Vr.  m7. 

But  while  this  is  true,  it  is  probably  equally  true  that  the  ap- 
pearance of  the  alteration  itself,  or  slight  circumstances  connected 
therewith,  may  exhibit  indicia  of  unfairness,  which,  while  falling 
short  of  proof  thereof,  would  throw  upon  the  propounder  of  the 
instrument  the  burden  of  showing  that  the  alteration  was  fairly 
made,  and  that  a  failure  upon  his  part  to  make  such  proof  would 
support  a  finding  against  the  validity  of  the  instrument.  Cases 
collected  in  S  Greenl.  on  Ev.  §  664^,  note. 

Were  this  a  cause  in  which  the  respondents  were  asserting  a 
cTaim  based  upon  this  assignment,  the  question  would  arise 
whether  such  indications  of  unfairness  exist.  Such  a  cause 
would  be  presented  by  a  foreclosure  suit  instituted  by  the  re- 
spondents to  foreclose  the  mortgage  assigned.  A  similar  cause 
would  appear  if  tlie  complainants,  ignoring  the  alleged  assign- 
ment, should  file  a  bill  to  foreclose  the  same  mortgage,  and  the 
respondents  should  come  in  and  assert  their  right  to  the  same,  by 
virtue  of  this  assignment. 

The  present  suit  is  not  of  this  character.  It  is  an  attack  upon 
the  validity  of  a  paper  which  it  brings  into  court,  and  the  avoid- 
ance of  which  it  asks,  upon  the  ground  that  it  is  a  forged  in- 
strument. 

The  gravamen  of  the  bill  is  that  it  was  fraudulently  altered. 
The  complainants  do  not  stand  here  defending  against  a  person 
who  produces  an  assignment  and  thereby  asserts  its  genuineness, 
but  they  occupy  the  position  of  parties  who  themselves  j)roduce 
the  instrument  and  assert  its  falsity.  They  must  prove  that 
falsity.  They  cannot  rest  their  case  upon  a  technical  presump- 
tion arising  from  circumstances  of  suspicion.  They  must  prove 
it  by  showing  affirmatively  a  collocation  of  circumstances  which 


344         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Van  Houten  v.  Post. 

impress  the  mind  with  a  conviction  that  the  instrument  was 
fraudulently  altered.  This  the  complainants  have  failed  to  do, 
and  the  decree  of  the  chancellor  should  be  affirmed. 

Decree  unanimously  affirmed. 


John  R.  Van  Houten,  executor  &c.,  appellant, 

V. 

Geokge  Post,  respondent. 

1.  Where  a  parent  bequeaths  a  legacy  to  a  child  it  is  understood  to  be  a 
portion,  and  if,  after  the  execution  of  the  will,  the  parent  gives  a  sum  of 
money  to  the  child  equal  in  amount  to  the  legacy,  if  it  be  ejusdem  generis,  it 
■will  be  an  ademption  of  the  legacy,  if  so  intended. 

2.  The  advancement  of  a  less  sum,  with  intent  to  go  on  the  legacy,  will  be 
an  ademption  pro  tanto. 

3.  Evidence  of  parol  declarations  of  testator  of  the  fact  of  giving  the  money 
is  not  admissible,  but  such  fact  must  be  proved  by  other  testimony. 

4.  Charges  in  books,  made  by  parent  against  child,  to  show  advancementa, 
admitted  in  evidence ;  such  testimony  having  been  so  long  received  by  the 
courts  of  this  state. 

5.  The  fact  of  the  money  having  passed  from  the  parent  to  the  child  being 
proved,  it  will  be  presumed  to  be  in  satisfaction  of  the  legacy ;  but  the  presump- 
tion will  be  slight,  and  evidence  of  parol  declarations  of  testator  that  he  did 
not  so  intend,  and  also  his  declarations  in  reply  thereto  that  he  did  so  intend, 
are  admissible. 

6.  Whether  intended  to  be  a  gift,  independent  of  the  legacy,  or  the  payment 
of  a  debt,  or  a  portion  in  ademption  of  the  legacy,  is  to  be  decided  by  the  cir- 
cumstances and  facts  proved  in  each  case. 


On  appeal  from  a  decree  of  the  ordinary,  reported  in  Van 
Bouten  v.  Fost,  5  Stew.  Eq.  709. 

Mr.  J.  Hopper  and  Mr,  J.  D.  Bedle,  for  appellant. 

Mr.  T.  D.  Hoxsey,  for  respondent. 


6  Stew.]  NOVEMBER  TERM,  1880.  345 

Van  Houten  v.  Post. 
The  opinion  of  the  court  was  delivered  hy 

Parker,  J. 

Rachael  Van  Houten  executed  her  last  will  on  the  20th  day 
of  October,  a.  d.  1857,  and  died  in  the  year  1863. 

The  executors  named  in  her  will  were  her  son-in-law  John 
R.  Van  Houten,  and  her  sou  George  Post,  the  litigants  in  this 
suit. 

On  April  27th,  1866,  an  account  was  filed  for  settlement  in 
the  orphans  court  of  the  county  of  Passaic.  It  purports  to  be 
the  account  of  both  executors,  but  was  filed  and  sworn  to  only 
by  John  R.  Van  Houten.  George  Post,  the  other  executor,  filed 
exceptions  to  the  account.  Van  Houten  prayed  allowance  for 
the  sum  of  $5,000,  paid  by  him  to  his  wife  Catharine  Van 
Houten  for  a  legacy  of  that  amount  bequeathed  to  her  by  the 
will  of  her  mother. 

To  this  claim  for  allowance  by  Van  Houten,  Post,  who  ia 
interested  in  the  residue,  excepted,  on  the  ground  that  after  the 
execution  of  the  will  the  testatrix  advanced  the  amount  of  said 
legacy  to  her  daughter  Catharine  with  the  uatention  of  satisfying 
the  same,  and  that  thus  the  legacy  was  adeemed.  The  orphans 
court  sustained  this  view  and  refused  to  allow  Van  Houten  the 
credit  he  claimed.  From  the  decree  of  the  orphans  court,  Van 
Houten  appealed  to  the  prerogative  court,  and  the  ordinary 
affirmed  the  same,  and  ordered  Van  Houten  to  pay  the  costs  of 
appeal  out  of  his  own  funds.  From  the  decree  made  by  the 
ordinary  Van  Houten  appealed  to  this  court. 

The  question  to  be  decided  is,  whether  the  $5,000  legacy  be- 
queathed to  Catharine  by  the  will  of  her  mother  was  adeemed. 
This  bequest  is  at  the  close  of  the  eleventh  item  of  the  will,  and 
is  ordered  to  be  paid  out  of  the  proceeds  of  certain  land  which 
the  executors  were  ordered  to  sell. 

Where  a  parent  bequeaths  a  legacy  to  a  child,  it  is  understood 
to  be  a  portion,  and  if,  after  the  execution  of  the  will,  the  pareut 
gives  a  sum  of  money  to  the  child  equal  in  amount  to  the  legacy, 
if  it  be  ejusdeni  generis,  it  will  be  an  ademption  of  the  legacy,  if 
so   intended.      2  Story's   En.  Jur.    §    1111   et   seq.,  and  notes 


346         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Van  Houten  v.  Post. 

thei'do;  S  Wms.  Exrs.  {ed.  1877)  1439;  S  Reclf.  on  Wills  537, 
and  notes. 

And  if  the  advancement  of  a  less  sum,  with  intent  to  go  on 
the  legacy,  be  proved,  it  will  be  an  ademption  pro  tanto.  2  Bed/, 
on  Wills  588. 

To  prove  the  ademption  of  a  legacy  it  must  appear,  first,  that 
the  legatee  received  the  money  from  the  testator  after  the  execu- 
tion of  the  will ;  and  secondly,  that  such  money  was  advanced  as 
a  portion,  with  the  intention  of  satisfying  the  legacy. 

There  is  some  contradiction  in  the  authorities  as  to  the  admis- 
sibility of  the  parol  declarations  of  the  testator,  after  the  execu- 
tion of  the  will,  upon  the  fact  of  the  passing  over  of  money  to 
the  child,  and  also  as  to  the  intent,  especially  where  such  declara- 
tions are  not  made  contemporaneously  with  the  act.  After  care- 
ful examination  of  the  cases,  the  following  are  deduced  and  stated 
as  rules  upon  tliis  much-vexed  question.  To  prove  the  mere 
fact  of  the  passing  over  of  the  money  from  the  parent  to  the 
child,  evidence  of  the  parol  declarations  of  the  testator  is  not  ad- 
missible, but  such  independent  fact  must  be  proved  by  other  tes- 
timony. Fawhner  v.  Watts,  1  Atk.  Jfi7  ;  Batton  v.  Allen,  1  Hal. 
Ch.  99  ;  2  Wms.  Exrs.  1U4. 

To  admit  evidence  of  such  declarations  would  be  to  revoke  the 
provisions  of  a  will  by  parol.  There  is  no  reason  for  such  a  de- 
parture from  principle.  Should  a  parent  make  an  advance- 
ment to  satisfy  a  legacy  to  a  child,  and  there  be  no  evidence 
of  the  fact  of  giving  the  money  to  the  legatee,  he  can  easily  mani- 
fest his  intention  by  executing  a  codicil. 

Charges  in  books  made  by  parent  against  child  have  been  so 
long  admitted  in  the  courts  of  this  state,  as  tending  to  show  ad- 
vancements, that  the  rule  in  reference  to  these  cannot  now  be 
well  changed,  but  such  evidence  as  to  the  fact  of  passing  over 
the  money  is  of  a  low  grade. 

The  fact  of  the  money  having  passed  from  the  parent  to  the 
child,  after  the  execution  of  the  will,  being  proved,  the  next 
question  is  as  to  the  admissibility  of  evidence  to  show  the  in- 
tention. 

Was  it  a  gift  independent  of  the  provisions  of  the  will,  or  a 


6  Stem-.]  NOVEMBER  TERM,  1880.  347 

Van  Houten  v.  Post. 

loao,  or  payment  of  an  obligation  ;  or  was  it  intended  as  a  portion 
in  satisfaction  of  the  legacy  ? 

The  current  of  authority  holds  that  it  will  be  presumed  to  be 
a  portion,  but  that  this  presumption  is  slight,  and  to  overcome  it 
evidence  of  parol  declarations  of  the  testator  is  admissible  to  show 
tiiat  he  did  not  intend  the  money  as  a  portion  in  satisfaction  of 
the  legacy,  and,  in  reply  thereto,  his  parol  declarations  that  he 
did  so  intend,  may  be  shown,  to  ascertain  if  the  presumption  be 
well  or  ill  founded.  Boseicell  v.  Bennet,  3  Atk.  77 ;  Kirh  v. 
Eddoioes,  3  Hare  509. 

The  presumption  arising  from  the  passing  of  the  money  from 
the  parent  to  the  child  is  so  slight  and  so  easily  overcome,  that 
the  rule  may  be  stated  to  be  that  whether  the  money  was  intended 
to  be  a  gift  independent  of  the  legacy,  or  the  payment  of  a  debt, 
or  a  portion  in  ademption  of  the  legacy,  must  be  decided  by  the 
circumstances  and  facts  proved  in  each  case. 

Declarations  of  a  testator  as  to  the  object,  when  admitted  in  evi- 
dence to  overcome  or  sustain  the  presumption,  in  order  to  adeem 
a  legacy,  should  not  be  vague  and  uncertain,  but  should  be  stated 
with  some  particularity,  so  that  they  could  be  understood  by  the 
witness  who  heard  them.  Otherwise  they  should  be  entitled  to 
but  little  weight. 

Declarations  of  the  intention,  to  avail  as  evidence,  should  be 
made  by  a  testator  who,  at  the  time  of  making  them,  was  in  the 
possession  of  his  mental  faculties.  If  the  evidence  in  the  case 
now  under  consideration  proves  that,  at  the  time  of  making  the 
alleged  declarations  as  to  intention,  Rachael  Van  Houten,  the 
testatrix,  was  insane,  and  not  in  condition  of  mind  to  make  a 
will,  such  declarations,  if  admissible,  should  be  disregarded  in 
determining  the  question  whether  a  provision  in  so  solemn  an 
instrument  as  a  last  will  should  be  thereby  rendered  nugatory. 

For  two  years  before  the  death  of  Rachael  Van  Houten  she 
was  insane.  For  some  time  previous  thereto  she  was,  as  the 
witnesses  say,  out  of  her  mind  much  of  the  time.  In  the  early 
part  of  a  conversation  she  would  appear  to  be  sane,  but  if  the  in- 
terview was  prolonged  she  would  become  excited  and  furious. 
Especially  would  this  be  the  case  if  the  conversation  related  to 


348         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Van  Houten  t'.  Post. 

her  property  or  her  will.  At  such  times,  the  witnesses  say,  she 
had  not  mind  enough  to  make  a  will.  For  the  last  two  years 
of  her  life  she  did  not  have  lucid  intervals. 

The  declarations  admitted  by  the  orphans  court  were  made  by 
the  testatrix  about  the  time  of  the  interview  spoken  of  by  Aaron  S. 
Pennington  in  his  testimony,  or  subsequent  thereto,  and  to  ascer- 
tain her  state  of  mind  then,  it  will  be  necessary  to  refer  to  his 
evidence. 

Mr.  Pennington  says  that  the  testatrix  made  certain  declara- 
tions to  him,  on  the  26th  day  of  October,  1859,  as  to  the  object 
of  the  giving  of  money  which  the  exceptant  claims  was  advanced 
by  her  to  her  daughter.  He  swears  that  he  drew  the  will  and 
superintended  its  execution  in  1857,  and  that  before  he  called  on 
her,  upon  the  occasion  he  speaks  of,  she  had  lost  her  mind  in  great 
measure,  but  when  her  partial  derangement  commenced  he  could 
not  say.  He  further  says  that  he  went  to  see  her  a  number  of 
times,  to  ascertain  if  she  was  in  a  condition  to  make  an  alteration 
in  her  will  about  Adrian  Post,  in  relation  to  his  share,  and  on 
those  occasions  she  would  get  flurried  and  unable  to  make  a  will, 
as  he  thought ;  that  the  last  time  he  saw  her  she  was  very  much 
out  of  her  mind,  and  told  him  she  was  afraid  he  would  do  her 
bodily  harm.  He  further  says  that  on  the  26th  day  of  October, 
1859,  the  day  she  made  the  declarations  to  which  he  testifies,  he 
would  not  have  allowed  her  to  cancel  that  will  under  any  cir- 
cumstances, and  that  he  doubted  if  on  that  day  she  had  full 
capacity  to  make  a  new  will.  Some  of  the  other  witnesses  speak 
of  her  declarations  about  the  time  of  the  interview  with  Mr. 
Pennington,  or  subsequent  thereto;  but  in  view  of  his  evidence 
as  to  her  state  of  mind,  it  is  not  necessary  to  examine  their  testi- 
mony. Whatever  she  said  under  those  circumstances  (if  legal 
evidence)  should  have  no  influence  in  the  determination  of  this 
cause. 

Leaving  out  of  view  all  evidence  of  the  declarations  of  the 
testatrix,  for  the  reasons  already  stated,  it  remains  to  consider 
other  testimony  offered  by  the  exceptant,  for  the  purpose  of 
proving  that  Catharine  received  the  money  from  testatrix  after 


6  Stew.]  NOVEMBER  TERM,  1880.  349 

Van  Houten  v.  Post. 

tlie  execution  of  her  will,  and  the  object  for  which  it  was  received 
by  her. 

It  is  said  that,  in  some  casual  conversations,  Catharine  admitted 
that  she  had  received  from  her  mother  $5,000,  in  satisfaction  of 
the  legacy.  Declarations  of  a  legatee,  both  as  to  the  fact  of  the 
receipt  of  money  and  the  object  for  which  it  was  received,  are 
important,  and  proof  of  this  character  should  be  examined  with 
much  care.  The  only  testimony  produced  by  exceptant  on  this 
branch  of  the  case  worthy  of  consideration,  is  that  of  Aaron  S. 
Pennington.  Upon  the  evidence  of  this  witness  the  decision  of 
the  prerogative  court  is  mainly  based. 

Mr.  Pennington  was  a  gentleman  of  high  character,  and  would 
not  intentionally  make  any  statement  he  did  not  believe  to  be 
true ;  but  from  all  the  admitted  facts  in  the  cause,  and  from 
other  parts  of  Mr.  Pennington's  testimony,  it  is  evident  that  he 
was  mistaken  in  his  statement  of  what  Catharine  said  to  him 
about  the  advancement  of  the  money. 

It  must  be  observed  that  the  examination  of  Mr.  Pennington 
as  a  witness,  took  place  nearly  nine  years  after  this  alleged  con- 
versation with  Catharine.  Mr.  Pennington  says,  in  substance, 
that  about  two  years  after  the  will  was  executed,  he  visited  the 
testatrix,  having  the  will  with  him,  and  that  his  recollection  is 
that,  as  he  came  down  stairs  from  the  room  of  testatrix,  he  saw 
Catharine  for  a  few  moments,  and  told  her  that  her  mother  said 
that  the  $5,000  (referring  to  the  legacy)  had  been  paid  her  in 
the  house,  and  that  she  replied,  "  That  is  right."  He  adds  that 
his  impression  of  what  Catharine  said  depends  entirely  upon  his 
recollection.  Mr.  Pennington  further  says  that,  when  he  went  to 
his  office,  he  endorsed  what  the  testatrix  had  said  on  the  envelope 
in  which  the  will  was  enclosed,  and  he  thought  he  had  also  en- 
dorsed what  "  Caty  "  said,  but  found,  when  he  came  to  give  his 
testimony,  he  had  not  done  so. 

If  Catharine  did  say  what,  after  the  lapse  of  so  many  years, 
!Mr.  Pennington  thinks  she  said,  is  it  not  strange  that  he  did  not 
endorse  her  reply  to  him  on  the  envelope  at  the  time  he  endorsed 
the  declaration  of  the  testatrix  ?  His  object  must  have  been  to 
preserve  evidence,  and,  as  a  lawyer,  he  must  have  known  thafe 


350         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Van  Houten  v.  Post. 

the  admissions  of  Catharine  were  of  far  more  importance  than 
the  declarations  of  testatrix,  especially  when  the  testatrix,  as  this 
witness  says,  had  lost  her  mind  to  such  an  extent  as  not  to  be 
able  to  make  a  will  upon  that  day. 

If  the  memory  of  the  witness  failed  him  as  to  his  supposed 
endorsement  of  what  "  Caty  "  said  upon  the  envelope,  did  it  not 
also  fail  him  as  to  what  "  Caty  "  did  actually  say  ?  One  is  in  refer- 
ence to  a  supposed  fact,  and  the  other  relates  to  a  hurried  con- 
versation, which  is  much  more  difficult  to  retain. 

The  strongest  evidence  of  inconsistency  in  the  testimony  of 
Mr.  Pennington,  showing  conclusively  great  infirmity  of  memory, 
is  the  fact  that  on  the  1st  day  of  February,  1865,  he  wrote  a 
receipt  for  Catharine  Van  Houten  to  sign,  acknowledging  the 
receipt  from  the  executor  of  Rachel  Van  Houten  of  $5,000 — 
for  the  very  legacy  in  question. 

Upon  this  instrument,  signed  by  his  wife,  John  R.  Van  Houten 
paid  the  money  which  in  his  account  he  asked  the  orphans  court 
to  allow  him. 

Mr.  Pennington  was  not  the  adviser  of  the  Van  Houtens 
alone,  but  was  the  counsel  and  confidential  friend  of  the  whole 
family  of  the  testatrix.  If  Catharine  had  told  him  the  legacy 
had  been  paid  her,  by  advancement  of  money  by  her  mother 
after  making  the  will,  would  he  have  allowed  the  executor  to  pay 
her  again  ?  An  honorable  and  just  man,  such  as  all  admit  Aaron 
S.  Pennington  was,  would  not  have  suffered  Catharine  to  receive 
a  double  portion. 

But  it  is  said  that,  at  the  time  he  wrote  the  receipt,  Mr.  Pen- 
nington had  forgotten  that  Catharine  had  told  him  she  had 
received  the  amount  of  the  legacy  from  her  mother.  This  is  an 
acknowledgment  of  his  loss  of  memory.  The  writing  of  the 
receipt  was  about  three  years  previous  to  the  examination  of 
Mr.  Pennington  as  a  witness,  and  if  he  had  any  memory  of  the 
conversation  with  Catharine,  it  would  certainly  then  have  been 
more  accurate  than  at  the  subsequent  period  of  his  examination. 

The  circumstances  attending  the  writing  of  that  receipt  were 
calculated  to  call  attention  to  what  Catharine  had  said  about  the 
legacy,  if  she  ever  did  say  what  the  witness  thinks  she  did.    He 


6  Stew.]  NOVEMBER  TERM,  1880.  351 

Van  Houten  v.  Post. 

knew  that,  by  the  will  which  he  had  drawn  and  kept  in  his  pos- 
session until  the  death  of  the  testatrix,  Catharine's  legacy  of 
$5,000  was  to  be  paid  to  her  out  of  the  proceeds  of  sale  of  certain 
land  by  the  executors,  which  sale  he  was  to  approve.  He  did 
approve  the  sale  and  prepare  a  deed  for  the  property,  and  also 
wrote  a  receipt  for  commissions,  to  be  signed  by  the  person  wlio 
effected  the  sale ;  and  on  the  same  day  he  wrote  the  receipt  for 
the  legacy  for  Catharine  to  sign.  There  should  not  have  been 
any  confusion  in  his  mind,  for  there  was  no  other  $5,000  legacy 
bequeathed  to  Catharine. 

Is  not  the  fact  that  Mr.  Pennington  wrote  the  receipt  for  the 
legatee  to  sign  so  inconsistent  with  his  testimony  as  to  what  she 
had  said  to  him  about  the  legacy,  as  to  conclusively  demonstrate 
that  his  memory  cannot  be  relied  upon  ?  If  the  conversation 
with  Catharine  had,  for  the  moment  while  writing  the  receipt, 
escaped  his  memory,  would  it  not  have  occurred  to  him  in  time 
to  have  the  money  refunded  to  the  executor?  Although  he 
must  have  seen  the  executor  and  legatee  almost  every  day,  there 
was  no  mention  of  the  conversation  with  Catharine  until  some 
three  years  afterward,  when  he  was  examined  as  a  witness. 

To  justify  Mr.  Pennington  in  writing  the  receipt  upon  which 
Catharine  was  paid  her  legacy  by  the  executor,  it  is  not  sufficient 
to  say  that  he  did  not  wish  to  take  part  in  any  dispute  about  the 
matter,  nor  be  counsel  for  either  party. 

There  is  no  evidence  that  at  the  time  the  receipt  was  drawn 
there  was  any  controversy  about  the  legacy,  nor  did  the  difficulty 
concerning  its  payment  arise  until  Mr.  Van  Houten  presented 
his  account  for  settlement.  It  was  Mr.  Pennington's  duty  to  tiike 
part,  if  he  had  knowledge  of  a  fact  or  declaration  of  the  legatee 
which,  if  proved,  would  adeem  the  legacy.  It  cannot  be  sup- 
posed that  so  just  a  man  as  Aaron  S.  Pennington  was  known  to 
be,  would  have  remained  silent  and  suffered  Catharine  to  be  paid 
15,000  which  he  knew  she  had  acknowledged  she  had  already 
received.  Much  less  would  he  aid  such  payment  by  drawing  a 
receipt  for  the  money,  for  her  to  sign. 

There  is  evidence  that  when  John  R.  Van  Houten  desired  to 
have  his  executor's  account  prepared    for   settlement  with  the 


352         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Van  Hoiiten  v.  Post. 

orphans  court,  he  took  the  papers,  including  the  $5,000  receipt, 
to  Mr.  Pennington  for  tliat  purpose,  and  that  the  account  claim- 
ing allowance  for  payment  of  the  legacy  to  Catharine  was  pre- 
pared in  his  office. 

From  the  foregoing,  it  is  evident  that  Mr.  Pennington  had 
entirely  forgotten  what  Catharine  had  said  on  the  occasion  spoken 
of  by  him,  and  he  says  he  never  spoke  to  her  again  on  the 
subject. 

If  the  testimony  closed  here,  it  is  clear  that  there  is  not  suffi- 
cient proof  to  justify  the  court  in  holding  that  the  legacy  was 
adeemed.  But  there  is  evidence  on  the  part  of  the  appellant. 
Catharine  Van  Houten  denies  positively  that  she  ever  told  Mr. 
Pennington  what  he  says  he  thinks  she  did,  or  that  she  ever  told 
any  one  that  her  mother  had  given  her  any  money  in  satisfaction 
of  the  legacy.  Both  Mr.  and  Mrs.  Van  Houten  swear  that  she 
(Catharine)  never  had  the  $5,000,  nor  any  part  thereof,  in  pay- 
ment on  the  legacy.  They  say  that  prior  to  the  construction  of 
the  house  referred  to  in  the  evidence,  or  about  that  time,  the  tes- 
tatrix, while  yet  sane,  made  her  daughter  presents  of  a  few  small 
sums,  amounting  in  all  to  about  $300,  to  aid  in  the  building, 
undertaken  at  the  testatrix's  request,  and,  in  fact,  in  part  for  her 
accommodation,  and  toward  which  she  had  promised  to  con- 
tribute. 

This  version  of  the  transaction  is  sustained  by  the  evidence  of 
Adrian  Post,  a  favorite  grandchild,  who  resided  with  her,  and 
knew  more  about  her  motives  while  she  was  in  possession  of  her 
mental  faculties  than  any  other  witness.  He  says  his  grand- 
mother never  told  him  she  had  furnished  a  cent  toward  the 
house,  but  said  she  would  help  along  a  little  towards  it,  for  the 
house  she  lived  in  was  not  large  enough  for  her  own  family. 

Mr.  Van  Houten  says  in  his  testimony  that  he  built  the  house 
with  his  own  money,  except  about  $800,  which  he  received  from 
his  wife,  $300  of  which  he  says  her  mother  presented  to  her  at 
different  times.  He  states  how  he  obtained  the  money  to  build 
the  house,  and  produces  a  copy  of  records  of  deeds  of  lands  sold 
by  him  prior  to  the  commencement  of  the  Avork,  showing  con- 
sideration-money expressed  as  received,  greater  in  amount  than 


6  Stew.]  NOVEMBER  TERM,  1880.  353 

Van  Houten  r.  Post. 

the  cost  of  the  house.  There  is  also  evidence  to  show  that  at 
that  time  John  R.  Van  Houten  was  abundantly  able  to  pay  for 
such  a  house  from  his  own  funds. 

If  Catharine  received  $5,000  from  her  mother  during  her  life, 
and  after  the  execution  of  the  will,  in  what  sums  was  it  handed 
to  her?  Was  all  given  her  at  once,  or  at  different  times,  and  if 
so,  how  much  at  a  time?  To  answer  these  important  questions 
no  evidence  is  produced.  Is  it  not  strange  that  if  so  large  a  sum 
ns  $5,000  was  given  by  the  testatrix  to  her  daughter,  no  one  saw 
it  done  ?  It  must  be  remembered  that  even  before  she  became 
insane,  the  testatrix  was  not  capable  of  transacting  such  business 
without  assistance. 

Mr.  Pennington  or  Mr.  Van  Houten  had  attended  to  her 
financial  affairs  for  several  years  before  she  lost  her  mind.  The 
money  could  not  well  have  been  disbursed  by  her  to  Catharine 
without  the  knowledge  of  one  or  both  of  them.  Both  were  wit- 
nesses in  this  cause,  but  neither  testifies  that  he  ever  saw  any 
money  pass  from  the  testatrix  to  her  daughter. 

Again,  where  did  the  testatrix  get  the  money  to  give  to  her 
daughter?  There  is  nothing  to  sliow  the  receipt  by  testatrix  of 
any  considerable  sum  of  money  at  the  time  of  the  building  of  the 
house,  or  within  a  reasonable  time  previous  thereto.  Several 
years  before  that  event  she  had  received  $1,700  or  $2,400  for  a 
mortgage,  but  as  her  money  when  it  came  in  was  re-invested 
either  by  Mr.  Van  Houten  or  Mr.  Pennington,  it  is  not,  in  the 
absence  of  evidence,  to  be  presumed  that  the  testatrix  had  that 
money  by  her  at  the  time  of  the  building  of  the  house.  If  not 
given  to  George  Post,  of  which  there  is  some  evidence,  or  used 
in  support  of  the  family  she  had  around  her,  some  of  whom  were 
continually  clamoring  for  money,  it  was  doubtless  re-invested. 

Could  the  testatrix,  in  her  condition  and  with  her  surround- 
ings, have  received  a  sum  so  large  as  to  satisfy  the  legacy  in 
question,  without  some  evidence  of  the  fact?  Does  not  the  tes- 
timony prove  that  for  several  years  before  her  actual  insanity, 
she  was  not  able  to  transact  such  business  alone  ?  When,  from 
whom  and  in  what  sums  did  she  receive  the  money  ?  Did  she 
give  any  receipt  or  writing  of  acknowledgment,  or  cancel  any 

23 


354         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Ruckman  v.  Ruckman. 

mortgage  of  large  amount  ?  Or  is  there  any  parol  testimony  of 
the  particulars  of  any  such  transaction  ?  No  such  evidence  is 
produced.  The  testimony  in  the  cause  does  not  sustain  the  alle- 
gation that  the  legacy  was  adeemed. 

The  claim  of  the  appellant  for  the  payment  of  $5,000  to  his 
wife  for  her  legacy  should  have  been  allowed  him  in  his  account 
before  the  orphans  court.  The  decree  of  the  ordinary  affirming 
the  decree  of  the  orphans  court  is  reversed. 

The  appellant  also  appeals  from  that  part  of  the  decree  of 
the  prerogative  court  which  directs  the  costs  of  the  appeal  to  be 
paid  out  of  his  own  funds.  This  part  of  the  decree  should  also 
be  reversed.  While  it  is  true  that  the  mass  of  the  testimony  has 
no  relevancy  to  the  issue  in  the  cause,  and  while  the  effort  appears 
to  have  been  made  to  reveal  the  family  history  from  its  beginning, 
in  its  most  hideous  and  repulsive  form,  rather  than  to  elucidate 
the  question  before  the  court,  yet  it  cannot  be  perceived  that  one 
party  was  less  eager  to  prolong  such  a  disgraceful  contest  than 
the  other,  and  as  the  litigants  seem  to  have  equally  enjoyed  this 
character  of  litigation  for  more  than  thirteen  years,  each  party 
should  pay  his  own  costs  in  the  appeal  before  the  prerogative 
court,  and  also  in  this  court,  out  of  his  own  funds. 

Decree  unanimously  reversed. 


Elisha  Ruckman,  appellant, 

V. 

Margaret  Ruckman,  respondent. 

1.  A  bond  and  mortgage  belonging  to  a  husband  were  assigned  by  him  to 
one  S.,  and  by  S.  immediately  re-assigned  to  the  wife ;  both  assignments  were 
duly  acknowledged,  and  that  to  S.  recorded,  by  the  husband's  direction,  but 
the  bond  and  mortgage  and  both  assignments  remained  in  the  husband's  pos- 
session, except  once  afterwards  when  the  mortgage  was  delivered  to  the  wife 
for  a  temporary  purpose  and  then  returned  by  her  to  her  husband.  There  was 
no  consideration  for  the  transfer — Hdd,  that  as  there  was  no  delivery  of  the 
bond  and  mortgage  and  assignment  to  the  wife,  the  title  thereto  never  passed 
to  or  vested  in  her. 


6  Stew.]  NOVEMBER  TERM,  1880.  355 

Ruckman  v.  Ruckman. 

2.  Costs  of  printing  a  volume  of  three  hundred  pages  of  testimony,  nine- 
tenths  of  which  consisted  of  matters  entirely  irrelevant  to  the  issue,  not 
allowed  to  either  party  as  against  the  other. 


On  appeal  from  a  decree  of  the  vice-chancellor,  reported  in 
Rucknian  v.  Ruckman,  5  Stew.  Eq.  259. 

Mr.  John  W.  Taylor,  for  appellant. 

Upon  the  evidence  there  arises  the  question  of  law,  whether 
there  was  a  siifftcient  delivery  to  make  the  assignments  effectual,  and 
vest  the  title  to  the  mortgage  in  Mrs.  Ruckman.  Com.  Dig.,  Fait 
A3,  A  4;  Coke  Lit.  86  a;  Shep.  Touch.  58;  3  Wash.  R.  P., 
{4-th  Ed.)  578 ;  Folly  v.  Vantuyl,  4  Hal.  153 ;  Cannon  v.  Can- 
non, 11  C.  E.  Gr.  316 ;  Church  v.  Muir,  4  Vr.  319 ;  Bump  on 
Fraud.  Conv.,  {2d  Ed.)  447. 

Mr.  R.  Allen,  jun.,  for  appellant,  cited — 

Ward  V.  Andlum,  8  Beav.  201 ;  Silmon  v.  Wilson,  3  Edw. 
36;  ScoviUe  v.  Post,  3  Edw.  203;  Wheeler  v.  KirUand,  8  C.  E. 
Cr.  13  ;  Skillman  v.  Skillman,  2  Beas.  403;  Jackson  v.  Malsdorf, 
11  Johns.  107 ;  Finch  v.  Finch,  15  Vesey  44)  Ambrose  v. 
Ambrose,  1  P.  Wms.  322;  Gascoigne  v.  Throing,  2  Vern. 
366;  Garfield  v.  Hartmaker,  15  N.  Y.  475,  10  Paige  567 ; 
Dills  v.  Stevenson,  2  C.  E.  Gr.  413;  3  Johns.  Ch.  383, 
521;  3  Ves.  361;  1  Jacobs  126;  Fulton  v.  Fulton,  48  Barb. 
583 ;  Shirttoff  v.  Francis,  118  Mass.  154;  Noble  v.  Smith,  2 
Johns.  53-56 ;  Smith  v.  Smith,  2  Strange  940,  956 ;  Delmotte 
v.  Taylor,  5  Bradf.  417  ;  Tait  v.  Helbai,  2  Ves.  112. 

31r.  Jacob  Weart  and  Mr.  I.  W.  Scudder,  for  respondent. 

A  gift  can  be  made  in  two  ways — by  parol,  or  by  deed  in 
writing.  The  donee  must  be  put  in  possession  of  the  property 
actually  or  constructively. 

Possession  is  given  in  two  ways — of  goods  and  chattels  by 
actual  or  constructive  delivery. 


356         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

lluckuian  v.  Uiiclciiian. 

Of  choses  in  actiou  by  an  assignment  in  writing,  or  by  a  parol 
assignment  and  actual  delivery.  Belts  v.  Francis,  1  Vr.  152 ; 
Dilts  V.  Stevenson,  2  C.  E.  Gr.  4.07;  2  Kent's  Comm.  439. 

A  bond  and  mortgage  is  a  chose  in  action,  and  may  be  as- 
signed in  equity  by  a  mere  delivery.  Galway  v.  Fullevton,  2  C. 
E.  Gr.  389;  Bower  v.  Hadden,  3  Stew.  Eq.  173 ;  Denton  v. 
Cole,  3  Stew.  Eq.  24.6  ;  Hughes  v.  Nekon,  2  Stew.  Eq.  549. 

If  the  bond  and  mortgage  was  assigned  to  defraud  creditors, 
the  assignment  will  be  set  aside  as  to  creditors,  but  is  good  be- 
tween the  parties.  Tantum  v.  3Iiller,  3  Stock.  551;  Cutler  v. 
Tattle,  4  C.  E.  Gr.  563;  Sayre  v.  Fredericks,  1  C.  E.  Gr.  205  ; 
1  Story's  Eq.  Jur.  §  372. 

Where  a  party  makes  a  transfer  of  property  for  the  purpose 
of  committing  a  fraud,  the  law  will  not  give  him  any  aid  to  re- 
cover the  same  back.  Tantum  v.  Miller,  3  Stock.  551 ;  1  Story's 
Eq.  Jur.  §  298;  Ruckman  v.  Ruckman,  5  Stew.  Eq.  259 ;  Cutler 
V.  Tuitle,  4  G.  E.  Gr.  562 ;  Baldwin  v.  Campfield,  4  -^^«^>  Cli. 
891 ;  Crawford  v.  Bertholf,  Sax.  458 ;  Folly  v.  Vantuyl,  4  Hal. 
153 ;  Farlee  v.  Farlee,  1  Zab.  285 ;  Cannon  v.  Cannon,  11  C. 
E.  Gi:  316;  Dilts  v.  Stevenson,  2  C.  E.  Gr.  413;  Irons  v.  Small- 
peace,  2  B.  &  Ad.  551;  2  Spenc.  Eq.  Jur.  907 ;  London  and 
Brighton  Railway  Co.  v.  Fair  dough,  2  Mann.  &  Gr.  691; 
Wesierlo  v.  De  Witt,  36  N.  Y.  345;  Hackley  v.  Vrooman,  62 
Barb.  670  ;  WalUngsford  v.  Allen,  10  Fet.  549  ;  Lucas  v.  Lucas, 
1  Atk.  270 ;  Martin  v.  Funk,  75  N.  Y.  134;  Sowerhye  v. 
Arden,  1  Johns.  Ch.  256,  258 ;  Minor  v.  Rogers,  4O  Conn. 
512 ;  Richardson  v.  Richardson,  L.  R.  {3  Eq.)  691 ;  Morgan 
v.  MaUeson,  L.  R.  {10  Eq.)  475  ;  Wilson  v.  Hill,  2  Beos.  143 ; 
Black  V.  Black,  3  Stew.  Eq.  227;  Van  Winkle  v.  Belleville  Mutual 
Ins.  Co.,  1  Beas.  335. 

The  opinion  of  the  court  was  delivered  by 

Green,  J. 

This  is  a  controversy  between  husband  and  wife,  respecting 
the  title  to  a  bond  and  mortgage  originally  made  to  the  hus- 
band, and  alleged  to  have  been  assigned  to  the  wife.     It  is  in 


6  Stew.]  NOVEMBEE,  TERM,  1880.  357 

Kuckman  v.  Ruckman. 

form  a  foreclosure  suit  brought  by  the  wife,  now  liviug  apart 
from  her  husband,  against  the  owners  of  the  mortgaged  premises. 
The  bill  sets  out  the  bond  and  mortgage,  and  alleges  that  the 
husband  by  writing,  under  his  hand  and  seal,  assigned  the  same 
to  one  Richard  L.  Simonson ;  and  that  Simonson  immediately 
assigned  the  same  to  the  wife;  that  both  assignments  were  duly 
acknowledged,  and  the  one  from  the  husband  to  Simonson  was 
afterwards  placed  on  record  by  the  husband's  direction.  By 
virtue  of  the  assignments,  the  wife,  in  her  bill,  claims  title  to  the 
bond  and  mortgage  as  a  gift  from  the  husband. 

The  bill  does  not  aver  that  the  assignments,  or  either  of  them, 
were  ever  delivered  either  to  Simonson  or  to  the  wife,  but  ex- 
])ressly  charges  that  the  bond,  mortgage  and  assignments 
remained  in  the  possession  of  Ruckman,  as  the  husband  and 
agent  of  the  wife.  The  prayer  is,  that  the  husband  may  be 
decreed  to  deliver  the  securities  and  assignments  to  the  com- 
})lainant,  and  for  a  foreclosure  and  sale  of  the  mortgaged 
premises. 

The  husband,  who  was  made  a  party  defendant,  answered  the 
bill.  He  admits  the  formal  execution  of  the  papers,  but  avers 
that  the  same  never  passed  out  of  his  hands  or  from  under  his 
control,  and  that  no  delivery  thereof  was  ever  made,  either  to 
Simonson  or  to  the  wife.  He  denies  that  she  ever  had  posses- 
sion of  the  assignments,  or  of  the  bond  and  mortgage,  by  virtue 
of  any  delivery,  absolute  or  constructive,  or  that  he  ever  held  the 
same  or  any  of  them,  as  the  agent  of  the  wife  or  in  trust  for  her. 

The  decree  below  was  in  favor  of  Mrs.  Ruckman,  in  accord- 
ance with  the  prayer  of  her  bill,  and  the  case  is  now  brought  to 
this  court  for  review. 

The  whole  contest  is  between  the  husband  and  wife  as  to  her 
title  to  the  bond  and  mortgage.  The  owners  of  the  equity  of 
redemption  make  no  defence.  Ruckman  is  not  asking  relief. 
We  are  not  called  upon  either  to  affirm  his  title  or  to  declare  the 
transfer  fraudulent  and  void,  as  against  his  judgment  and 
attaching  creditors  who  were  made  parties  to  the  bill.  All  these 
matters,  though  discussed  on  the  hearing,  may,  for  the  purposes 
of  this  case,  be  safely  laid  out  of  view. 


358         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Ruckman  r.  Kiickman. 

To  maintain  her  action  it  is  necessary  for  the  respondent  to 
establish  her  title  to  the  securities  in  question.  The  burden  is 
on  her.  In  her  bill  she  claims  title  by  virtue  of  the  deeds  of 
assignment,  and  charges  that  the  transfer  from  Ruckman  to  her 
Avas  good  as  a  gift.  The  two  assignments  were  executed 
simultaneously.  They  constitute  but  one  transaction.  Simon- 
son  was  called  in  by  Ruckman  merely  to  act  as  a  medium  or 
instrument  for  passing  the  title.  No  delivery  of  either  assign- 
ment was  made  to  or  by  him.  He  merely  affixed  his  name  to 
an  instrument  prepared  by  Ruckman's  direction  without  reading 
it  or  knowing  the  subject  matter  of  the  transfer.  Xo  title 
vested  in  him.  He  disclaims  all  interest  under  the  assignment 
made  by  Ruckman.  Nor  was  it  the  intention  of  Ruckman  to 
vest  any  interest  in  Siraonson,  but  merely  to  use  him  as  a 
medium  for  passing  the  title  to  the  wife,  should  it  become  advis- 
able to  make  the  transfer.  The  two  assignments  may  be  con- 
sidered as  one  instrument  designed  for  passing  title  from  the 
husband  to  the  wife.  Upon  delivery  to  her,  both  would  take 
effect  as  one  deed. 

The  formal  execution  of  the  assignments  by  signing,  sealing 
and  acknowledging  is  admitted,  but  their  delivery  to  the  re- 
Bjiondent  is  denied.  This  is  the  real  issue  in  the  cause.  The 
transfer  was  purely  voluntary  and  without  consideration  either 
valuable  or  meritorious.  It  does  not  fall  within  the  line  of 
cases  where  effect  has  sometimes  been  given  by  courts  of  equity 
to  certain  deeds,  such  as  declarations  of  trust  and  family  settle- 
ments, though  retained  in  the  custody  of  the  grantor  and  never 
delivered  during  his  life.  It  is  subject  to  the  universal  rule 
upon  which  all  the  books  agree,  that  delivery  is  one  of  the 
essential  requisites  to  the  validity  of  a  deed. 

Was  a  sufficient  delivery  of  the  assignments  made  to  the 
respondent  to  vest  the  title  to  the  mortgage  in  her?  The  essence 
of  the  delivery  consists  in  the  intent  of  the  grantor  to  perfect 
the  instrument,  and  to  make  it  at  once  the  absolute  property  of 
the  grantee,  and  his  acts  and  declarations  are  the  evidence  of  such 
iTitent.  If  both  parties  be  present,  and  the  usual  formalities  of 
execution  take  place,  and  the  contract  is  to  all  appearance  con- 


6  Stew.]  NOVEMBER  TERM,  1880.  359 

Euckman  r.  Euckman. 

summated  without  any  conditions  or  qualifications  annexed,  it  is 
a  complete  and  valid  deed,  notwithstanding  it  be  left  in  the  cus- 
tody of  the  grantor.  But  where  there  is  not  an  actual  transfer 
of  the  deed,  it  must  satisfactorily  appear  either  from  the  circum- 
stances of  the  transaction,  or  the  acts  or  words  of  the  grantor, 
that  it  was  his  intention  to  part  with  the  deed  and  put  the  title 
in  the  grantee.  FoUy  v.  Vantuyl,  4-  Sal.  153  ;  Farlee  w  Farlee, 
lZab.279,286;  Crawford  v.  Bertholf,  Sax.  4^8  ;  CaJinonv.  Can- 
von,  11  C.  E.  Gr.  316;  4  Kent's  Comm.  456;  3  Wash.  E.  P.  581. 

In  this  case,  there  is  no  evidence  that  either  of  the  assignments 
was  ever  delivered  to  the  respondent.  She  was  not  present  at 
their  execution.  They  never  came  into  her  hands.  She  never 
heard  of  the  transfer  for  more  than  six  months  afterward.  No 
one  was  present  when  the  papers  were  executed  but  Ruckman, 
Simonson  and  the  attorney  who  prepared  them,  and  possibly 
one  of  his  clerks.  So  far  as  appears  by  the  evidence,  not  an 
act  was  done  or  word  said  by  the  appellant  evincing  any  intent 
on  his  part  to  perfect  the  instrument,  and  to  part  with  its  pos- 
session or  his  control  over  it.  On  the  contrary,  he  directed  the 
attorney  to  send  the  assignment  from  Ruckman  to  Simonson  to 
the  clerk's  office  for  record ;  and  the  one  to  the  respondent  he 
placed  with  the  bond  among  his  papers  in  the  bank,  where  it 
remained,  according  to  Ruckman's  account,  until  he  destroyed  it. 
The  assignment  was  not  made  in  pursuance  of  any  contract  or 
arrangement  with  the  respondent,  and  no  presumption  arises 
from  the  mere  fact  that  it  was  acknowledged,  so  long  as  it  re- 
mained in  the  possession  and  under  the  control  of  the  grantor. 
Even  if  it  was  the  intent  of  Ruckman  at  the  time  of  the  execu- 
tion of  the  papers  to  perfect  the  gift  by  delivery,  still  it  was 
revocable  until  carried  into  effect.  A  mere  intention  or  promise 
to  give,  without  some  act  to  pass  the  property,  is  not  a  gift. 
There  exists  the  locus  penitentice  so  long  as  the  gift  is  incom- 
plete and  left  imperfect.     3  Kent's  Comm.  438. 

In  Pringle  v. '  Pnngle,  59  Pa.  St.  281,  the  same  principle 
was  involved  as  in  this  case.  The  question  arose  upon  the  as- 
signment of  a  promissory  note.  Mr.  Justice  Sharswood.  in  his 
opinioii,  says : 


360         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Kuckman  v.  Kuckman. 

"The  transfer  of  a  chose  in  action,  whether  by  instrument  under  seal  or  not, 
unless  founded  on  a  sale  for  valuable  consideration,  is  not  complete  and  exe- 
cuted until  delivery  to  the  assignee.  In  a  gift  of  a  chattel,  actual  delivery  is 
essential.  Until  delivery,  the  gift  is  revocable  by  the  donor.  So,  where  there 
is  a  gift  of  a  security  or  chose  in  action,  and  the  donor  executes  an  assignment, 
under  seal  or  otherwise,  and  retains  tlie  paper  in  his  own  possession,  he  retains, 
at  the  same  time,  entire  control  over  the  gift.  He  may  cancel  or  destroy  the 
transfer.  But  it  is  urged  that  a  seal  imports  consideration,  and  the  transfer,  on 
its  face,  purports  to  be  for  a  valuable  consideration,  but  the  seal  produces  no 
effect  until  the  instrument  becomes  the  deed  of  the  party  by  delivery,  or  what, 
in  law,  is  equivalent  thereto.  Until  then,  the  instrument,  though  signed  and 
sealed,  is  still  an  unexecuted  transfer  in  the  eye  of  the  law." 

But  it  was  urged  at  the  hearing,  though  not  expressly  stated 
in  the  bill,  that  even  if  the  title  under  the  assignments  failed, 
still  that  the  respondent  claimed  by  a  parol  gift  and  delivery  of 
the  mortgage  itself.  It  appears,  by  the  evidence,  that  for  some 
reason  the  appellant  deemed  it  important  to  make  a  demand  on 
the  mortgagor  for  the  balance  due  on  the  mortgage,  and  desired 
not  to  make  it  in  his  own  name.  He  told  his  wife  he  wanted 
her  to  make  the  demand.  He  handed  the  mortgage  to  her,  and 
told  her  what  to  say.  They  went  together  to  Nyack  in  a  wagon, 
and  she  made  the  demand  in  his  presence  and  in  accordance  with 
his  directions,  having  the  mortgage  in  her  hands,  and,  in  the 
presence  of  the  mortgagor,  claiming  it  as  hers.  She  carried  it 
home  again,  and,  by  her  husband's  instructions,  put  it  in  his  pri- 
vate box  where  he  kept  his  papers. 

The  circumstances,  as  detailed  by  the  respondent,  are  not  evi- 
dence of  the  delivery  of  the  mortgage  as  a  gift  to  the  wife.  It 
was  not  placed  in  her  hands  with  the  intention  and  for  the  pur- 
pose of  transferring  the  title  to  her,  but  for  an  entirely  different 
purpose,  as  expressed  by  the  appellant  at  the  time.  All  the 
time  the  mortgage  was  in  her  possession  she  was  in  her  husband's 
presence  and  under  his  control.  She  was  his  mouth-piece,  re- 
peating his  words;  his  agent,  acting  by  his  direction.  Not  one 
act  did  she  perform,  not  one  word  did  she  say,,  of  her  own  voli- 
tion. When  they  returned  home  she  restored  the  mortgage  to 
his  custody,  and  never  afterwards  had  it  in  her  hands.  She  did 
not  claim  it  as  her  property  until  after  their  separation. 

The  title  of  the  respondents  has  never  been  perfected  by  a  de- 


6  Stew.]  NOVEMBER  TERM,  1880.  361 

Euckman  v.  Kuckman. 

livery,  either  of  the  assignments  or  of  the  mortgage  itself,  auJ 
for  this  reason  she  must  fail  in  her  action,  both  against  the  ap- 
pellant and  the  owners  of  the  equity  of  redemption.  It  is  a  well- 
settled  rule  that  courts  of  equity  will  lend  no  assistance  towards 
perfecting  a  mere  voluntary  contract  while  it  remains  in  fieri. 
They  will  only  enforce  gifts  and  assignments  inter  vivos  when  the 
gift  or  assignment  is  perfected  and  complete.  If  anything 
furllier  remains  to  be  done  to  complete  the  title  of  the  donee, 
courts  of  equity,  treating  the  donee  as  a  mere  volunteer,  will  not 
aid  him  to  carry  it  into  effect.  1  Story's  Eq.  Jur.  §  706,  and  cases 
cited. 

Before  disposing  of  the  question  of  costs,  the  court  desires  to 
call  attention  to  the  amount  and  nature  of  the  testimony  taken 
in  the  cause.  The  printed  book  contains  nearly  three  hundred 
pages  of  evidence,  not  one-tenth  of  which  has  any  direct  bearing 
apon  tlie  real  issue  between  the  parties.  The  remainder  consists 
mainly  of  inquiries  into  the  private  affairs,  social  status,  domestic 
relations,  and  general  moral  or  immoral  character  of  the  parties 
— all  of  it  totally  irrelevant,  and  much  of  it  disgusting  in  its 
details.  The  taking  of  such  testimony  is  an  onerous  tax  upon 
litigants,  and  the  reading  of  it  an  imposition  on  the  court.  No 
costs  therefor  will  be  allowed  either  party  as  against  the  other. 

The  decree  should  be  reversed,  and  the  complainant's  bill  dis- 
missed, but  without  costs,  either  in  this  court  or  in  the  court 
below,  as  between  the  parties  to  this  appeal.  The  respondent's 
title  to  tlie  bond  and  mortgage  having  entirely  failed,  the  bill 
should  be  dismissed  as  to  the  other  defendants,  but  no  appeal 
having  been  taken  on  their  behalf,  they  must  seek  relief  in  the 
court  of  chancery,  and  apply  for  the  dismissal  there. 

For  reversal — Beasley,  C.  J.,  Depue,  Knapp,  Scudder, 
Van  Syckel,  Clement,  Cole,  Dodd,  Greex — 9. 
For  affirmance — Magie,  Reed — 2. 


362         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 


Colt  I'.  Miller. 


Morgan  G.  Colt  et  al.,  appellants, 

V. 

Elias  N.  MilLiER,  administrator,  &c.,  respondent. 

3Iessrs.  Bedle,  Muirhead  <&  McGee,  Mr.  Ashbel  Green  and  Mr. 
B.  Williamson,  for  appellants. 

Messrs.  C.  &  R.  W.  Parker,  for  respondent. 

Per  Curiam. 

This  decree  unanimously  aflBrmed  for  reasons  given  by  the 
chancellor  in  the  case  below,  6  Stew.  Eq.  6. 


Margaret  Crater  et  al.,  appellants, 

V. 

Jacob  Welsh,  executor,  respondent. 
Mr.  A.  Q.  Keasbey,  for  appellants. 

Mr.  Alfred  Mills,  for  respondent. 

Per  Curla-M. 

This  decree  unanimously  affirmed  for  reasons  given  by  the 
chancellor  in  the  case  below,  5  Stew.  Eq.  177. 


Dajstiel  F.  Tompkins  and  wife,  appellants, 

V, 

David  Campbell,  respondent. 
Mr.  Fred.  Adams,  for  appellants. 
Mr.  Elwood  C.  Harris,  for  respondent. 

Per  Curiam. 

This  decree  unanimously  affirmed  for  reasons  given  by  the 
chancellor  in  the  case  below,  S  Stew.  Eq.  170. 


CASES 


ADJUDGED  IN 


THE  COURT  OF  CHANCERY 

OF 

THE  STATE  OF  NEW  JERSEY. 

FEBRUARY  TERM,  188L 


Theodore  Runyon,  Esq..  Chancellor. 


Abram  Y.  Van  Fleet,  Esq.,  Vice-Chancellor. 


HULDAH   H.   ScHANCK 


V. 


Charles  W.  Schanck. 

Where  a  wife  in  anger  told  her  husband  that  he  "might  go  his  way  and  she 
would  go  hers,"  and  gave  other  evidence  of  her  desire  that  they  should  live 
separate,  but  immediately  retracted  and  besought  him  not  to  go,  and  he,  not- 
withstanding her  entreaties,  left  her,  in  a  passion,  and,  without  any  attempt  at 
reconciliation  and  without  contributing  anything  towards  her  support  or  even 
communicating  with  her  in  any  way,  remained  awiiy  from  her  for  three  years, 
living  all  the  time  in  the  same  county  with  her — Held,  that  she  was  entitled  to 
a  divorce  for  desertion. 


Bill  for  divorce.     On  final  hearing  on  pleadings  and  proofs. 

(363) 


364  CASES  IN  CHANCERY.  [33  Eq. 

Schanck  v.  Scbanck. 
3Ir.  W.  T.  Hoffman,  for  complainant. 
Mr.  B.  Gummere,  for  defendant. 

The  Chancellor. 

This  suit  is  for  divorce  from  the  bond  of  marriage,  and  is 
brought  by  a  wife  against  her  husband.  The  ground  is  deser- 
tion. The  bill  was  filed  on  the  12th  of  August,  1878,  and  it 
charges  that  the  defendant  has  been  guilty  of  willful,  continued 
and  obstinate  desertion  of  the  complainant  for  a  period  of  three 
years  and  more  before  the  filing  of  the  bill.  The  time  stated  as 
the  beginning  'of  the  desertion  is  the  25th  of  January,  1875. 
The  parties  were  married  in  this  state,  in  January,  1871,  and 
they  are  and  have  been  ever  since  the  commencement  of  the 
alleged  desertion,  and  were  previously  thereto  for  about  two 
years,  residents  and  inhabitants  of  Monmouth  county.  By  far 
the  greater  part  (and  indeed  almost  all)  of  the  large  amount  of 
testimony  which  has  been  taken  in  the  cause  has  reference  to 
matters  (the  history  of  the  married  life  of  the  parties  prior  to 
the  desertion)  which  in  my  view  of  the  case  it  is  not  necessary  or 
profitable  to  advert  to  at  any  considerable  length.  A  glance  at 
the  main  facts  will  be  enough  on  that  score.  Immediately  after 
their  return  from  their  wedding  tour  the  parties  went  to  reside  in 
the  city  of  New  York,  where  the  defendant  was  engaged  in  busi- 
ness as  a  broker.  They  boarded  there  until  the  middle  of  April, 
1871,  when  he  failed  in  business.  He  proposed  to  his  wife  to  go  to 
live  with  his  parents  in  One  hundred  and  fifty-second  street,  but 
she  preferred  to  come  out  to  Keyport,  where  her  parents  lived,  and 
they  came  out  accordingly,  and  boarded  with  her  father  until  the 
spring  of  1872,  when  they  went  to  his  mother's  farm  at  Cream 
Hidge,  in  Monmouth  county.  They  remained  there  until  the 
scarlet  fever  broke  out  in  the  tenant's  family  (seven  persons 
being  ill  of  the  disease  at  the  same  time),  and  then  the  complain- 
ant returned  to  her  father's  house,  but  the  defendant  stayed. 
The  complainant,  after  six  weeks'  stay  at  Keyport,  returned  to 
Cream  Ridge  and  stayed  till  November,  1872,  when  she  and 
her  husband  went  to  Keyport,  and  from  there,  in  same  fall,  to 


6  Stew.]  FEBKUARY  TERM,  1881.  365 


Schanck  v.  Schanck. 


Brooklyn.  They  boarded  in  the  last-mentioned  city  until  April, 
1873,  being  supported  by  an  allowance  of  $25  a  week,  made  to 
the  defendant  by  his  father.  While  in  Brooklyn,  the  defendant 
endeavored  to  obtain  employment  as  a  clerk,  but  without  success. 
In  April,  1873,  his  father  having  met  with  losses  in  business, 
refused  to  continue  the  allowance,  but  invited  the  parties  to  come 
to  Cream  Ridge,  offering  to  board  them  in  his  house  and  pay  the 
defendant  ^1  a  day  for  his  services  around  the  place.  The 
defendant,  having  no  other  resources,  went  accordingly,  but  the 
complainant  was  unwilling  to  go,  and  remained  with  her  parents 
at  Key  port,  which  is  about  thirty-five  miles  distant  from  Cream 
Ridge.  The  defendant,  on  the  one  hand,  attributes  her  refusal  to 
live  with  him  at  the  farm  to  her  dislike  of  agricultural  life  and 
her  mortification  at  his  accepting  employment  so  far  below  the 
measure  of  his  capabilities.  She,  on  the  other  hand,  avers  that 
the  reason  was  merely  her  unwillingness  to  live  with  his  mother, 
whose  sour  temper  and  unpleasant  treatment  had  rendered  her 
unhappy  during  her  previous  stay  there.  The  defendant  con- 
tinued at  the  farm  until  the  spring  of  1874,  when  he  entered 
into  a  new  agreement  to  work  it  "  on  shares ;"  he  and  his  wife 
to  have  for  their  occupation  a  part  of  the  house  separate  from 
that  occupied  by  his  parents.  The  complainant  refused  to  go 
there.  In  February,  1874,  an  agreement  was  suggested  and 
drawn  up  by  a  friend  of  the  defendant's,  at  whose  house  the 
parties  were  paying  a  short  visit  of  a  few  days  together,  by  which 
the  defendant,  on  the  one  hand,  agreed  to  make  an  effort  (by 
going  to  New  York  to  "board,  advertise  and  answer  advertise- 
ments" for  ten  days,  if  his  parents  would  furnish  the  money),  to 
get  employment  in  New  York  or  its  vicinity  at  a  salary  of  not 
less  than  $600  a  year  with  a  prospect  of  promotion,  and  she,  on 
the  other  hand,  agreed  that  if  he  should  make  the  effort  and  fail, 
she  would  go  to  the  farm  and  without  Complaint  perform  her 
duties  there.  She  declined  to  go,  however,  and  stayed  with  her 
parents ;  her  husband  remaining  on  the  farm,  working  it  under 
the  agreement,  and  visiting  her  occasionally.  In  January,  1875, 
he  was  at  her  father's  house  on  one  of  his  visits,  and  while  there 
the  occurrence  took  place  from  which  the  complainant  dates  the 


366  CASES  IN  CHANCERY.  [33  Eq. 

Schanck  v.  Schanck. 

desertion,  aud  of  which  it  will  be  necessary  to  speak  at  length. 
The  defendant  then  left  the  complainant,  and  though  he  has 
ever  since  lived  on  the  farm  and  she  at  her  parents'  house  ia 
Keyport,  he  had  never,  up  to  the  commencement  of  this  suit,  con- 
tributed to  her  support  or  even  communicated  with  her  in  any 
way.  The  transaction  of  January,  1875,  just  referred  to,  occurred 
on  Friday  night  and  Saturday  morning,  the  19th  and  20th.  Tlie 
complainant  narrates  it  as  follows  : 

"Friday  night  we  were  talking,  and  I  wanted  him  to  get  something  to  do, 
and  got  to  talking  about  it,  and  he  got  angry  with  me,  and  I  can't  tell  you 
what  he  said,  but  he  left  the  room ;  that  was  the  time  he  went  out  of  the  house 
when  he  said  he  walked  round  several  times,  and  then  he  came  back  again ; 
he  was  talking  about  everything ;  he  wanted  me  to  live  with  his  mother,  aud  I 
said  I  would  not  do  it ;  then  I  wanted  him  to  get  something  else  to  do,  and  we 
were  talking  about  that ;  then  he  came  back  and  went  to  bed,  and  the  next 
morning  he  went  to  New  York.  Sometime  before  that,  the  visit  before,  when 
he  came  to  our  house,  he  asked  me  for  the  ring  that  was  given  with  the  under- 
standing that  when  I  was  tired  of  him,  I  would  give  it  to  him ;  but  he  took  it 
away  from  me  himself,  and  I  cried  and  he  gave  it  back  to  me ;  and  he  had 
before  repeatedly  asked  me  when  I  was  tired  to  give  him  that  ring  back  and 
he  would  understand ;  after  we  had  those  words  Friday  night,  Saturday  morn- 
ing I  turned  round  and  gave  him  that  ring ;  I  did  so  because  I  felt  completely 
tired  out  with  him — worried  and  worn  out,  completely  exhausted — so  that  I 
thought  that  I  could  not  stand  it  any  longer;  he  took  the  ring  and  we  then 
went  down  to  breakfast ;  he  was  very  pleasant  and  talked  with  them  all ;  I 
was  very  silent,  and  when  we  went  out  of  the  dining-room  door,  he  did  not 
Bay  good-bye  to  me,  so  I  said  to  him,  'Ain't  you  going  to  kiss  me  good- 
bye?* he  said  'Yes,'  and  kissed  me  and  left;  he  came  back  Saturday  night 
with  the  boat  and  treated  me  very  coolly  and  indifferently ;  he  did  not  say 
anything — did  not  say  a  word  ;  I  don't  think  we  said  five  words  to  each  other ; 
the  evening  passed,  and  at  night  we  retired  ;  he  and  my  father  had  a  long 
conversation,  and  I  heard  him  say  that  he  had  made  so  much  on  the  farm — 
between  $400  and  $500 — and  my  father  said,  '  Haven't  you  got  anything  for 
your  wife  when  you  have  made  so  much?'  he  said,  'Sometime  I  will  give 
her  something;'  then  I  went  up  stairs  and  thought  it  all  over;  I  thought  I 
could  not  live  this  way  any  longer,  so  I  went  down  stairs  and  said  to  him, 
'  Y'ou  can  go  your  way  and  I  will  go  mine ;  I  can't  stand  tliis  way  of  living 
any  longer ; '  I  went  up  stairs,  and  after  awhile  he  came  up  and  said,  '  Where 
is  that  tin  box  with  the  papers  ? '  and  with  that  he  kissed  me  good-bye,  and 
as  he  got  to  the  top  of  the  stairs  I  ran  out  and  took  him  by  the  coat,  and  he 
jerked  himself  away,  so  that  he  hit  himself  against  the  wall,  and  I  halloaed  to 
him  to  come  back ;  he  paid  no  attention  to  me,  and  that  was  the  last  time  I 
saw  him." 


6  Stew.]  FEBEUARY  TERM,  1881.  367 

Schanck  v.  Scbanck. 

She  gives  as  the  reason  why  she  ran  after  him  and  pulled  him 
back,  that  she  "  had  feeling  for  him,  and  felt  sorry."  She  says 
that  when  he  went  away  it  was  between  ten  and  eleven  o'clock 
at  night.  It  appears  that  what  she  cried  after  him  to  induce 
him  to  come  back,  was  " Charley,  won't  you  come  back?"  She 
testifies  that  when  she  gave  him  the  ring,  and  said  he  might  go, 
she  meant,  not  that  he  might  go  forever,  but  only  for  that  time. 
From  his  testimony,  which  corroborates  her  in  all  essential 
respects  in  this  narrative,  it  appears  tliat  the  ring  was  given 
before  their  marriage,  and  that  tlie  understanding  which  she  said 
existed  between  them  as  to  using  it  as  a  means  of  denoting  her 
desire  to  be  released  from  him,  had  reference  to  their  betrothal 
merely.  He  also  says  that  when  she  told  him  he  could  go  his 
way  and  she  would  go  hers,  her  manner  was  sorrowful.  It  is 
quite  evident  from  all  the  testimony  on  the  subject  that  the  diffi- 
culty between  them  arose  from  the  complainant's  dissatisfaction 
with  the  effort  made  by  the  defendant  to  obtain  more  suitable 
employment,  and  her  conviction  that  she  would  be  unable  to 
live  comfortably  with  his  mother  on  the  farm.  There  seems  to 
be  no  reason  for  doubt  that  that  conviction  was  well  founded. 
It  is  urged,  however,  on  behalf  of  the  defendant,  that  it  was  her 
husband's  right  to  choose  his  employment  and  his  place  of  resi- 
dence, and  it  was  her  duty  to  accept  his  choice,  and  go  with  him 
to  his  domicile  and  reside  there  with  him.  The  decisive  question 
in  this  case  is  not,  however,  whether  the  complainant  was  right 
or  wrong  in  refusing  to  go  with  her  husband  to  the  farm  and 
accept  his  selection  of  a  pursuit  and  place  of  abode,  but  whether 
what  luck  place  between  him  and  her,  as  above  testified,  justi- 
fied him  in  abandoning  her,  in  depriving  her  of  his  society  and 
of  all  support,  and  in  never  making  any,  even  the  least,  effort 
to  ascertain  whether  she  had  not  changed  her  mind,  or  could  not 
be  induced  to  do  so.  It  is  urged,  in  his  behalf,  tiiat  when  she 
gave  him  the  ring  and  subsequently  told  him  he  might  go  his 
way  and  she  would  go  hers,  she,  in  effect,  deserted  him,  or  at 
least  expressed  her  desire  for  or  consent  to  an  indefinite  separa- 
tion. But  she  swears,  and  her  statement  is  corroborated  by  the 
circumstances  as  detailed  in  the  testimony,  that  she  had  no  inten- 


368  CASES  IN  CHANCERY.  [33  Eq. 


Schanck  v.  Schanck. 


tion  of  expressing  a  desire  for  a  final  sepai'ation,  but  only  to 
express  her  resolve  in  regard  to  the  subject  which  was  the  cause 
of  difference  between  them.  She  appears  to  have  intended  to 
express  only  her  determination  not  to  go  to  the  farm  to  live  if  she 
had  to  live  in  the  same  house  with  his  mother,  and  that,  too, 
merely  because  of  her  conviction  that  she  could  not  live  in  com- 
fort there  with  his  mother.  But,  moreover,  after  she  had  given 
the  ring  and  made  that  expression,  and  her  husband  had  gone 
out  of  the  room  to  go  out  of  the  house,  she  strove  to  detain  him, 
and  called  after  him  in  a  tone  of  entreaty,  "  Charley,  won't  you 
come  back?"  thus  showing  that  she  did  not  wish  him  to  go, 
but  desired  that  he  should  return  to  her  in  order  that  the  subject 
might  be  further  considered,  perhaps  with  a  view  to  a  submis- 
sive compliance  on  her  part  with  his  wishes.  Her  father,  as  the 
defendant  left  the  house,  invited  him  to  stay  for  the  night,  but 
the  defendant,  conceiving  that  he  had  been  treated  with  indignity 
in  what  had  passed,  refused  to  listen  to  the  entreating  call  of  hia 
wife  or  her  father's  exhortation.  For  three  years  and  a  half 
before  the  bill  was  filed  he  denied  his  wife  any,  the  least,  attention 
or  recognition,  but  permitted  her  to  live  in  a  state  of  separation 
from  him,  wholly  dependent  on  her  family  for  her  support. 
His  reason  for  it  seems  to  have  been  the  wound  which  his  pride 
received  when  his  wife  told  him  he  might  go  his  way  and  she 
would  go  hers.  Under  the  cii^Gumstauces  of  the  case,  the  husband 
owed  a  duty  to  his  wife — a  duty  to  society — to  avoid,  as  he  well 
might  have  done,  the  consequences  which  his  punctilious  resent- 
ment (so  exacting  that  he  would  not  even  condescend  to  propose 
the  terms  on  which  it  might  be  appeased),  has  inflicted  upon  his 
wife.  He  was  not  at  liberty  to  leave  her  uncared  for  and  un- 
protected. If  his  excuse  were  her  refusal  to  live  on  the  farm,  it 
could  not  be  accepted,  for  he  abandoned  her  in  January,  while 
the  arrangement  under  which  she  refused  to  live  on  the  farm 
was  not  to  take  effect  until  April  following.  But  the  expression 
of  her  resolution  not  to  live  on  the  farm  was  not,  in  fact,  the 
occasion  of  his  withdrawal  from  her.  His  complaint  against 
her  was  not  on  that  account,  but  on  the  ground  of  her  treatment 
of  him  on  the  occasion  of  his  last  visit  to  her.     He  says  that  all 


6  Stew.]  FEBRUARY  TERM,  1881.  369 

Schanck  v.  Schanck. 

the  time  he  expected  she  would  come  to  him  at  the  farm.  In- 
deed, he  corrects  the  record  of  his  testimony  lest  he  should  be 
misrepresented  where  it  made  him  say  that  she  had  not  offered 
to  live  in  the  tenant-house  on  the  farm.  The  proof  is  clear  that 
she  was  quite  willing  to  do  that,  and  had  offered  to  do  it ;  that 
she  was  not  unwilling  to  live  on  a  farm,  or  on  his  mother's  farm, 
but  was  not  willing  to  live  in  the  same  house  with  his  mother. 
Manifestly,  he  was  actuated  in  his  abandonment  of  her  merely 
by  resentment  and  pique.  When  asked  on  the  witness-stand 
whether  his  going  away  from  her  and  refusing  to  see  or  com- 
municate with  her  was  because  he  would  not  sacrifice  his  dignity 
sufiSciently  to  do  so,  he  replied  that  he  "  would  not  under  the 
past  circumstances  and  her  orders,"  and  he  admits  that  he  never, 
after  his  withdrawal,  signified  to  her  the  possession  on  his  part 
of  the  slightest  interest  in  her  welfare,  or  contributed  of  his 
means  a  single  cent  for  her  support,  or  offered  her  a  home  with 
him.  And  he  bases  his  justification  of  his  conduct  towards  her 
on  his  regard  for  his  self-respect,  saying  that  he  never  expected 
to  cross  her  father's  threshold  again  until  he  should  have  received 
her  invitation  or  that  of  her  family  to  do  so. 

It  is  clear  that  she  never  intended  to  desert  him.  Her  letters 
offered  in  evidence  by  him  contain  the  very  strongest  expressions 
of  affection,  and  were  undoubtedly  sincere.  Were  he  before  the 
court  asking  a  divorce  from  her  on  the  ground  of  desertion,  his 
application  would  be  denied  for  the  reason  that  he  has  been 
derelict  in  his  duty  towards  her  under  the  circumstances.  Jen- 
twigs  v.  Jennings,  2  JBeas.  38 ;  Cornish  v.  Cornish,  8  O.  E.  Gr. 
£08;  Bowlby  v.  Bowlby,  10  C.  E.  Gr.  4.06.  In  Cornish  v. 
Cornish,  which  was  a  suit  by  a  husband  against  his  wife  fur 
divorce  for  desertion,  the  husband  had  come  home  late  at  night 
and  the  wife  was  slow  in  admitting  him  into  the  house.  He 
resenting  her  tardiness  and  discontent  at  being  so  disturbed, 
threatened  to  chastise  their  child  of  a  year  old  because,  having  been 
awakened  by  the  noise  of  the  altercation,  it  very  naturally  cried. 
She  snatched  the  ,child  up  and  flew  into  a  passion,  and  declared 
her  determination  to  leave  the  house  (her  husband's  father's)  and 
go  to  her  father's  house  as  a  refuge  from  such  treatment,  and  that 

24 


370  CASES  IN  CHANCERY.  [33  Eq. 

Schanck  v.  Schanck. 

she  would  never  live  with  her  hvisband  again  and  would  get  a 
divorce.  Her  husband  harshly  bid  her  look  to  the  consequences 
of  such  a  step.  She  went  home  that  night.  Said  the  chancellor, 
in  refusing  the  divorce  : 

"He  [the  husband]  sent  her  away  in  this  mood  at  midnight,  with  a 
hired  man,  to  her  father's  house,  three  miles  distant.  He  has  never  been  to 
her  since,  to  seek  for  reconciliation  or  ask  lier  to  return.  He  has  met  her  a 
number  of  times  without  speaking  to  her.  Her  temper  may  be  too  quick  and 
too  violent,  but  it  was  his  duty  to  go  to  her  after  leaving  under  these  circum- 
stances, and  see  if  some  contrition,  some  concession  on  his  part,  would  not  do 
away  with  the  effect  of  his  harsh  conduct  on  that  night.  Her  threat,  in  the 
anger  of  the  moment,  never  to  live  with  him  and  to  obtain  a  divorce,  is  not 
sufficient  excuse  for  not  making  the  attempt.  He  has  acted  as  if  he  were 
anxious  to  convert  a  small  quarrel  between  him  and  his  wife,  in  which  he  was 
both  much  and  most  to  blame,  into  a  legal  ground  for  divorce.  He  has  not 
made  the  advances  or  concessions  which  a  just  man  ought  to  have  made  to  put 
an  end  to  this  desertion." 

That  reasoning  is  applicable  to  the  case  under  consideration. 
It  declares  and  defines  the  duty  of  the  husband  under  such  cir- 
cumstances as  are  presented  here.  And  the  reasoning  is  founded 
on  a  just  view  of  the  marital  relation  which  imposes  upon  the 
husband  the  duty  of  maintaining,  for  the  benefit  of  himself  and 
his  wife  and  also  of  society  at  large,  the  integrity  of  the  matri- 
monial tie,  and  to  that  end  requires  of  him  effort,  and,  if  need  be, 
concession  and  persuasion.  To  the  same  purpose  and  in  the  same 
strain  is  the  language  of  the  court  in  Yeatman  v.  Yeatman,  L.  R. 
{1  P.  &  D.)  J^9 : 

"  It  would  be  of  evil  example  if  this  court  should  hold  that  mere  frailty  of 
temper,  unless  shown  in  some  marked  and  intolerable  excesses,  was  a  reason- 
able ground  to  justify  a  man  in  throwing  a  young  wife  upon  the  world  without 
the  protection  of  his  home  and  society.  A  woman  so  placed  is  open  to  many 
temptations.  If  she  fail  to  resist  them  the  husband  who  has  already  quitted 
her  will  not  be  slow  to  take  advantage  of  her  fall,  making  his  own  desertion  a 
first  step  towards  a  claim  for  divorce.  True,  she  may  at  once  insist  on  return- 
ing to  him,  and  may  obtain  a  decree  obliging  him,  if  within  the  jurisdiction 
of  this  court,  to  receive  her  again,  and  tlius  terminate  the  desertion.  But 
angry  feelings,  the  prompting  of  pride  or  the  advice  of  others  may  intervene. 
The  wife  may  not  be  inclined  to  protect  hereelf  by  forcing  her  society  upon  a 
husband  bent  upon  casting  her  off,  and  if  the  result  is  criminality,  the  original 


6  Stew.]  FEBRUARY  TERM,  1881.  371 

Schanck  v.  Schanck. 

fault  still  lies  at  the  husband's  door.  If  submission  is  the  part  of  the  wife, 
protection  is  no  less  that  of  the  husband,  and  he  is  bound  to  extend  that  pro- 
tection to  his  wife,  even  against  herself  and  her  own  impulses,  so  far  as  the 
fences,  the  restraints  and  the  inducements  of  conjugal  cohabitation  may  serve 
to  that  end." 

In  this  case,  it  is  pertinent  to  say  the  defendant  gives,  as  one 
of  his  reasons  for  not  going  to  see  his  wife,  that  "  he  had  heard 
reports,  too,  that  wei-e  not  complimentary."  The  reports  to 
which  he  refers  appear  to  have  been  the  merest  idle  village 
gossip,  but  such  as  they  were  she  would  in  all  probability  have 
been  s[)ared  the  annoyance  and  mortification  of  being  the  subject 
of  them  if  her  husband,  thinking  more  of  his  wife  than  of  his 
pique,  had  done  his  duty  towards  her.  It  is  to  be  observed  that 
the  marital  relation  between  these  parties  remained  unbroken  up 
to  the  time  when  the  withdrawal  took  place,  and  that  it  was 
broken  only  by  the  defendant's  ceasing  to  visit  his  wife.  After 
he  left  her  he  neither  requested  her  to  come  to  him  or  to  visit 
him  at  any  place.  He  never  proposed  to  her  any  terms  of  con- 
donation of  what  he  appears  to  have  regarded  as  her  offence 
against  him.  When  he  saw  her  he  would  not  recognize  her. 
In  short,  in  all  things  he  treated  her  as  a  mere  stranger. 

The  husband  who  withdraws  himself  wholly  from  his  wife's 
society,  refusing  to  make  any  provision  for  or  have  any  commu- 
nication with  her,  prima  facie  deserts  her,  and  if  he  continues 
such  treatment  for  three  years,  she  will,  in  the  absence  of  lawful 
excuse  on  his  part,  be  entitled  to  a  divorce.  The  defendant  has 
so  dealt  with  the  complainant  in  this  case,  but  to  rebut  the  pre- 
sumption to  which  his  conduct  gives  rise,  he  by  his  answer 
alleges  (denying  the  desertion  while  he  admits  the  withdrawal) 
that  he  has  informed  her  that  his  house  on  the  farm  Avas  always 
open  to  her  and  that  it  was  his  greatest  desire  that  she  should 
come  and  live  with  hifia,  but  she  refused  again  and  again  until 
he  lost  all  hope  of  reconciling  her  to  his  life  and  home  on  the 
farm.  But  in  point  of  fact  he  has  never  communicated  with  her 
at  all  on  any  subject  in  any  way  since  he  left  her.  That  he 
intended  to  abandon  her  there  can  be  no  doubt,  for  he  did  actu- 
ally abandon  her.     That  he  never  placed  any  limit  to  the  time 


372  CASES  IN  CHANCERY.  [33  Eq. 

Central  K.  E.  Co.  v.  Standard  Oil  Co. 

the  abaudoument  was  to  continue,  as  by  imposing  terms  or  con- 
ditions her  compliance  with  which  would  restore  marital  relations 
between  them,  is  equally  indisputable.  It  is  also  beyond  ques- 
tion that  he  manifested  no  desire  for  nor  expressed  any  expecta- 
tion of  a  renewal  of  connubial  relations.  He  left  her  without 
providing  for  her  support,  and  has  lived  in  the  same  county  iu 
which  she  has  resided  ever  since,  and  for  three  years  and  more 
before  this  suit  was  brought  he  treated  her  as  if  he  had  cast  her 
off  forever,  and  gave  her  to  understand  nothing  to  the  contrary. 
He  has  made  himself  amenable  to  the  law  which  authorizes  the 
court  to  decree  a  divorce  for  three  years'  willful,  continued  and 
obstinate  desertion. 


The  Central  Railroad  Company  of  New  Jersey  et  al. 


V. 


The  Standard  Oil  Company  et  al. 

After  the  court  had  refused  a  preliminary  injunction  for  the  removal  of  an 
oil  pipe  and  to  prevent  its  use  by  defendants,  and  had  discharged  an  ad  interim 
order  staying  the  defendants  in  the  premises,  and  an  appeal  therefrom  had 
been  taken  and  was  pending,  an  application  to  this  court  to  continue  such  ad 
interim  order,  merely  on  the  ground  of  the  appeal,  was  denied. 


Motion   to   continue  interim  stay  pending  determination  of 
appeal. 

Mr.  B.  Gummere,  for  the  motion. 

Mr.  B.   Gilchrist  and  Mr.  A.  P.  Whitehead,  of  New  York, 
oontra. 

The  Chancellor. 

On  the  filing  of  the  bill  in  this  cause  an  order  to  show  cause 


6  Stew.]  FEBRUARY  TERM,  1881. .  373 

Central  E.  K.  Co.  v.  Standard  Oil  Co. 

why  an  injunction  should  not  be  issued  pursuant  to  the  prayer 
of  the  bill,  was  granted,  with  an  ad  interim  stay  prohibiting  the 
defendants,  the  oil  company,  from  using  the  pipe  for  the  convey- 
ance of  oil.  The  bill  complains  that  the  defendants  have  with- 
out authority  invaded  and  usurped  the  property  and  franchises 
of  the  complainant  company  by  laying  pipe  for  the  conveyance 
of  petroleum  across  the  property  of  the  latter,  and  near  and 
alongside  of  a  bridge  across  the  railroad,  wliich  the  complainants 
insist  was  when  the  pipe  was  laid,  and  still  is,  the  property  of 
the  railroad  company.  The  pipe  was  laid  in  what  is  claimed  by 
tlie  defendants  to  be  the  space  taken  by  condemnation  by  the 
municipal  authorities  of  the  city  of  Bayonne,  for  a  public  street, 
in  which  space  the  bridge  is.  The  prayer  of  the  bill  is,  that  the 
defendants  may  be  enjoined  from  interfering  with  the  complain- 
ants in  the  removal  of  the  pipe  from  the  bridge  and  from  over 
the  railroad  tracks,  and  from  interfering  with  the  complainants 
by  laying,  or  for  any  purpose  using,  any  pipe  either  over,  on  or 
under  the  complainants'  railroad  tracks  in  Bayonne  or  elsewhere, 
or  in  any  manner,  for  the  purpose  of  laying  the  pipe,  interfering 
with  or  occupying  the  complainants'  railroad  ;  and  generally  for 
other  relief.  The  defendants  answered  the  bill,  and  the  order  to 
show  cause  was  argued  on  the  pleadings  and  depositions  and 
exhibits  on  each  side,  and  the  questions  in  dispute  between  the 
litigants  were  very  fully  and  ably  presented  and  discussed  on 
both  sides,  and  after  full  and  very  deliberate  consideration  the 
order  was  dischai'ged.     This,  of  course,  dissolved  the  temporary 


Note. — The  following  cases  hold  that  after  an  order  refusing  an  injunction, 
an  application  to  continue  or  re-instate  such  injunction  is  not  maintainable  in 
the  appellate  court  (Graves  v.  Graves,  2  Hen.  &  Munf.  22  ;  Galloway  v.  London, 
S  De  G.  J.  &  Sm.  59,  11  Jur.  {N.  S.)  537;  Spears  v.  MutJunvs,  66  JS\  Y.  127) ; 
nor  does  an  appeal  from  such  order  revive  or  continue  it  [Chegary  v.  Seojield, 
1  Hal.  Ch.  525;  Hicks  v.  Michael,  15  Cal  107;  Wood  v.  Bwicjht,  .-  Johns.  Ch. 
295  ;  Nacoochee  Co.  v.  Davis,  40  Ga.  309 ;  Garrow  v.  Carpenter,  4  Steiv.  &  Fort. 
336;  Brevoort  v.  Detroit,  24  Mich.  322;  Dutcher  v.  Culver,  23  Min.n.  415  ;  Jew- 
ell V.  Albany  Bank,  Clark  Ch.  59 ;  Hart  v.  Albany,  S  Paige  3S1 ;  Fellows  v. 
Eeermans,  13  Abb.  Pr.  (N.  S.)  1;  Blount  v.  Tomli7i,  26  III.  531). 

The  following  cases  hold  otherwise,  but  in  some  instances  the  proceedings 
are  statiitory  {Fenrice  v.  Wallis,  37  3Iiss.  172;  Levy  v.  Goldberg,  40  Wis.  SOS; 


374  CASES  IN  CHANCERY.  [33  Eq. 

Central  R.  R.  Co.  v.  Standard  Oil  Co. 

Stay  contained  in  it.  From  the  order  denying  tlie  preliminary 
injunction  the  complainants  have  appealed,  and  they  now  move 
for  a  continuance  of  the  ad  interim  stay  during  the  appeal. 
Whether,  on  the  dissolution  of  an  injunction,  the  court  will  con- 
tinue the  prohibition  pending  an  appeal  from  the  order,  is  in  the 
discretion  of  the  court.  The  148th  and  149th  rules  of  court 
provide  that  an  appeal  from  an  interlocutory  order  or  decree 
shall  not  stay  proceedings  without  an  order  of  this  court,  or  of  the 
appellate  tribunal,  to  be  granted  on  such  terms  as  the  court  may 
gee  fit  to  impose.  And  in  case  of  appeal  from  a  final  decree,  the 
appeal,  if  taken  in  ten  days  from  the  filing  of  the  decree,  shall 
operate  as  a  stay  of  execution,  unless  this  court  or  the  appellate 
court  shall  otherwise  order ;  that  is,  if  the  appeal  be  taken  within 
ten  days,  no  execution  shall  be  issued  without  order,  and  if  not 
taken  within  that  time,  and  execution  shall  have  been  issued,  the 
appeal  will  not  stay  it  unless  so  ordered.  In  either  case,  the 
application,  whether  for  execution  or  for  a  stay,  is  addressed  to 
the  discretion  of  the  court,  and  will  be  granted  only  on  good 
cause  shown.     Schenck  v.  Conover,  2  Beas.  31. 

"  If  the  court,"  said  the  Chancellor  (Green)  in  the  case  just  cited,  "in  the 
exercise  of  this  discretion,  see  that  in  case  the  decree  should  be  reversed  the 
party  cannot  be  set  right  again — if  the  complainant  proceeds  to  a  sale  under 
his  execution — there  is  a  strong  reason  for  a  stay  of  execution.  If,  on  the 
other  hand,  the  stay  of  execution  is  unnecessary  to  protect  the  rights  of  the 
appellant  under  the  appeal  and  must  operate  prejudicially  to  the  complainant, 
the  court  ought  not  to  interfere." 


Turner  v.  Scott,  5  Rand.  S32  ;  Bre/fsler  v.  McCune,  56  III.  475  ;  Yocom  v.  3foore,  4 
Bibb  S21 ;  Pittsburgh  R.  R.  v.  Hurd,  17  Ohio  St.  144;  Williams  v.  Pouns,  4S  Tex. 
141).  Whether  application  for  a  continuance  may  be  entertained  by  the  chancel- 
lor, after  an  appeal,  see  Hart  v.  Albany,  3  Paige  SSI ;  Sixth  Ave.  R.  R.  v.  Gilbert 
B.  R;  3  Abb.  N.  C.  53  ;  Butcher  v.  Culver,  23  Minn.  415;  Haynes  v.  Hayes,  6S  111 
SOS;  Eldridge  v.  Wright,  15  Cal.  88;  Penrice  v.  Wallis,  37  3fiss.  172;  Helm  v. 
Boone,  6  J.  J.  Marsh.  353).  Where  a  restraining  order,  granted  on  a  rule  to  show 
cause  why  an  injunction  should  not  issue,  falls  with  the  refusal  of  the  injunction, 
it  is  neither  appealable  nor  revived  by  an  appeal  from  the  order  refusing  the 
injunction  [Powell  v.  Parker,  33  Ga.  644;  Ogle  v.  Dill,  55  Lid.  ISO;  see  Hunt- 
ington V.  NicoU,  3  Johns.  566;  Citizens  Bank  v.  Walker,  26  Ark.  468).—R-ep. 


6  Stew.]  FEBRUARY  TERM,  1881.  375 

Central  E.  R.  Co.  v.  Standard  Oil  Co. 

In  the  English  practice  such  applications  are  not,  in  general, 
favored,  Eden  on  Inj.375;  2  Joyce  on  Inj.l319,13W.  In 
MonJchouse  v.  Corporation  of  Bedford,  17  Ves.  380,  382,  Lord 
Eldon  said  that  the  execution  of  the  decree  would  not  be  stayed 
by  chancery  on  appeal  unless  the  court  saw  that  if  it  should  turn 
out  to  be  wrong  the  party  could  not  be  set  right  again.  In  Wdlford 
V.  Walford,  L.  R.  [3  Ch.)  812,  Lord  Justice  Sir  W.  Page  Wood, 
speaking  on  the  subject,  says  the  correct  course  is  to  stay  pro- 
ceedings pending  an  appeal  only  when  the  proceedings  would 
cause  irreparable  injury  to  the  appellant  and  mere  inconvenience 
and  annoyance  are  not  enough  to  take  away  from  a  successful 
party  the  benefit  of  his  decree.  In  this  state,  in  Van  Walken- 
burgh  v.  Rahway  Bank,  4-  Hal.  Ch.  725,  where  the  application 
was  to  the  court  of  errors  and  appeals  on  an  appeal  from  an 
order  dissolving  an  injunction,  for  an  order  in  the  nature  of  a 
temporary  injunction  retaining  the  parties  and  subject  matter  of 
the  controversy  in  statu  quo  until  the  final  hearing  of  the  appeal, 
the  court  said  that  the  application  was  addressed  to  the  sound 
discretion  of  the  court,  and  that  when  an  injunction  has  been 
dissolved  by  the  chancellor,  the  appellate  court,  upon  appeal  from 
that  order,  would  usually  revive  the  injunction,  either  (1)  upon  a 
pure  injunction  bill  when  the  whole  matter  in  controversy  is  the 
continuance  of  the  injunction,  and  where,  consequently,  the  whole 
object  of  the  suit  would  be  defeated  if  the  party  were  not  tem- 
porarily restrained  by  the  order  of  the  appellate  tribunal ;  or  (2) 
where  it  clearly  appears  that  the  intervention  of  the  power  of 
the  appellate  tribunal  is  necessary  to  prevent  great  and  irreparable 
mischief  to  the  rights  of  the  appellant. 

In  the  case  in  hand,  no  material  injury  is  to  be  apprehended 
from  the  refusal  to  continue  the  injunction.  The  pipe  had  been 
laid  when  the  bill  was  filed.  The  stop  order  was  merely  against 
the  use  of  the  pipe  for  the  conveyance  of  oil  until  the  order  to 
show  cause  could  be  heard.  No  injuiy  from  leakage  in  such  use 
of  the  pipe  is  reasonably  to  be  apprehended.  Nor  is  any  to  be 
anticipated  from  the  presence  of  the  pipe  in  case  the  complain- 
ants should  desire  to  raise  the  bridge.  The  pipe  crosses  the  air 
space  above  the  railroad  at  the  same  height  as  the  bridge,  and 


376  CASES  IN  CHANCERY.  [33  Eq. 

Central  K.  E.  Co.  v.  Standard  Oil  Co. 

until  the  railroad  company  or  the  receiver  shall  wish  to  raise  the 
bridge,  it  cannot  be  in  their  way.  If  it  shall  be  found  to  be  so 
when  the  bridge  is  to  be  raised,  this  court  can  protect  the  rail- 
I'oad  company's  rights,  whatever  they  may  be,  in  the  premises. 
As  to  the  alleged  infringement  of  the  complainants'  franchise,  it 
does  not  appear  to  exist.  It  is  urged,  however,  that  the  com- 
plainants insist  that  the  oil  company  has  usurped  its  property, 
and  to  permit  the  latter  to  continue  to  do  so,  is  an  irreparable 
injury.  But  it  is  a  question  to  be  determined  whether  such 
usurpation  has,  in  fact,  taken  place,  and,  seeing  that  the  pipe  had 
been  laid  when  the  bill  was  filed,  and  there  is  no  danger  to  be 
apprehended  from  the  use  of  it  for  the  conveyance  of  oil,  nor 
any  inconvenience  from  its  presence  in  case  the  complainants 
should  determine  to  raise  the  bridge,  it  is  clear  that  no  material 
injury  will  arise  from  tlie  refusal  to  prevent,  before  the  final 
hearing,  the  oil  company  from  using  the  pipe.  There  is,  in  fact, 
no  material  injury  to  be  fairly  apprehended  from  the  refusal  to 
enjoin  in  limine. 

It  is  further  urged,  however,  that  such  refusal  will  iiiflict 
irreparable  injury  on  the  complainants,  because  it  will  render 
relief  more  difficult,  if  not  impossible,  by  reason  of  the  fact 
that  under  the  license  which,  as  the  complainants  insist,  the 
refusal  substantially  gives,  the  oil  company  may  expend  money 
in  the  enterprise  of  which  the  pipe  is  part,  and  thus  create  com- 
plications which  equity  will  regard  as  obstacles  to  the  granting 
of  the  rights  of  the  complainants,  while  such  obstacles  will  be 
prevented  by  a  continuance  of  the  stay.  But  as  was  Sd,id  in 
JSaston  V.  K  Y.  &  L.  B.  R.  R.  Co.,  9  C.  E.  Gr.  4.9,  69,  in  answer 
to  a  like  suggestion,  the  oil  company  will  receive  no  license  or 
immunity  from  the  refusal  of  the  court  to  interfere  with  it  on 
the  application  for  a  preliminary  injunction.  After  the  bill  has 
been  filed,  and  it  has  been  called  into  court  on  the  charge  of  inva- 
sion and  usurpation  of  the  railroad  company's  property,  if  the 
oil  company  proceeds  in  the  same  direction,  it  must  be  at  its  peril. 
In  denying  the  interim  interference  asked  for,  the  court  has  not 
decided  that  the  oil  company  is  in  the  right  in  the  matters  com- 
plained of,  except  so  far  as  the  complainants'  claim  is  based  on 
alleged  interference  with  the  franchise  of  carrying  goods  for  tolls. 


6  Stew.]  FEBRUARY  TERM,  1881.  377 

Central  E.  E.  Co.  v.  Standard  Oil  Co. 

All  that  this  court  has  determined  is,  that  there  is  no  ground  to 
justify  a  preliminary  injunction,  and  that  it  will  wait  until  the 
final  hearing  to  see  whether  it  ought  to  issue  its  prohibitory  man- 
date. I  regard  the  language  of  Lord  Brougham,  in  Walbwn  v. 
Ingilhy,  1  31.  &  K.  61,  86,  as  apposite.  The  application  was  to 
stay,  pending  appeal  from  it,  the  execution  of  an  order  for  pro- 
duction of  books  and  documents. 


"  It  has  been  said  more  than  onoe  in  this  place,  that  such  applications  are 
better  made  in  the  House  of  Lords.  And  in  one  of  the  cases,  Lord  Eldon 
treated  such  an  application  as  a  misapprehension  of  the  party's  proper  course, 
on  the  ground  that  the  chancellor's  order  refusing  to  stay  might  itself  be 
appealed  from,  and  so  on  without  end.  He  added,  as  another  reason,  that  the 
court  of  appeal  has  the  power  of  pit)tecting  the  party  in  the  possession  of  the 
judgment  against  any  vexatious  delay  consequent  on  the  stay,  by  advancing 
the  cause  where  it  has  been  decided  iit  to  grant  the  application.  *  *  *  J 
had  every  inclination,  originally,  to  grant  this  application ;  and  if,  on  confer- 
ring with  others  whose  experience  gave  great  weight  to  their  opinions,  I  had 
found  that  any  doubt  was  entertained,  upon  the  matter  of  the  order  or  of  this 
motion,  I  should  probably  have  stayed  the  execution.  But  even  then  I  am  not 
sure  that  I  should  have  done  right;  for  certainly  it  would  be  giving  encourage- 
ment to  vexatious  appeals  upon  a  large  class  of  the  business  which  occupies 
these  courts.  Indeed,  were  this  motion  granted  upon  the  allegation  that  refus- 
ing it  will  enable  a  party  to  do  something  which  cannot  be  undone,  or  to  obtain 
some  advantage  which  can  never  afterwards  be  wrested  from  him,  it  is  impos- 
eible  to  conceive  any  case  of  an  order  for  paying  money  out  of  court,  for  dis- 
solving an  injunction  for  appointing  a  receiver,  in  which  the  same  ground 
existing  much  more  plainly,  the  same  course  must  not  be  pursued,  and  thus 
the  very  cases  where  it  is  of  the  most  essential  importance  that  speedy  execu- 
tion sliould  take  place,  the  very  cases  in  which  this  court  possesses  its  peculiar 
jurisdiction  because  of  that  urgent  necessity,  will  be  those  in  which  the  argu- 
ment for  suspending  execution  will  be  most  powerful.  In  other  and  better 
words,  in  the  language  of  Lord  Eldon,  the  arm  of  the  court  will  indeed  be 
palsied." 

If  the  order  complained  of  were  an  order  dissolving  an  injunc- 
tion, and  the  bill  be  regarded  as  a  pure  injunction  bill,  the  stay 
would  not  be  continued  unless,  in  the  language  of  the  court  in 
Van  Waikenhurgh  v.  Rahway  Bank,  the  object  of  the  suit  would 
be  unavoidably  defeated  if  the  defendant  were  not  immediately 
restrained,  or  it  clearly  appeared  that  the  intervention  of  the  power 
of  injunction  was  necessary  to  prevent  great  and  irreparable  mis- 


378  CASES  IN  CHANCERY.  [33  Eq. 

Central  E.  E.  Co.  v.  Standard  Oil  Co. 

chief  to  the  rights  of  the  coraplainauts.  I  do  not  see  that  the 
object  of  the  suit  will  be  defeated,  or  irreparable  injury  be  done 
to  the  complainants,  if  the  stay  be  not  continued. 

But  in  addition  to  the  foregoing  considerations,  there  is  another 
which  is  entirely  conclusive  in  this  case.  Tiie  complainants  have 
never  been  in  possession  of  any  judgment  of  this  court  in  favor  of 
their  claim  to  interlocutory  interference.  No  injunction  was 
granted  to  them.  On  the  filing  of  their  bill  they  obtained  not  an 
injunction,  but  an  order  to  show  cause  why  an  injunction  should 
not  be  issued.  The  interim  stay  before  mentioned,  prohibiting  the 
oil  company  from  conveying  oil  by  the  pipes,  was  indeed  incorpo- 
rated in  the  order;  but  it  was  granted  only  to  give  the  court 
opportunity,  without  prejudice  to  the  rights  claimed  by  the  com- 
plainants by  the  delay  necessary  for  the  inquiry,  to  inquire,  on 
notice,  whether  there  ought  to  be  any  preliminary  injunction  or 
not,  to  enable  the  court  to  be  careful  and  circumspect  and  regardful 
of  the  rights  of  both  parties  in  the  use  of  the  injunction  power. 
Tiie  fact  of  the  granting  of  such  a  stay  can  give  the  party  obtain- 
ing it  no  claim  whatever  to  a  continuance  of  it  in  case  of  refusal 
to  enjoin  and  an  appeal  from  the  order  of  refusal ;  for  it  is  granted 
only  pending  preliminary  inquiry.  It  is  merely  a  prudential 
interference,  limited  to  the  time  when  the  court  shall  have  reached 
a  conclusion  as  to  the  propriety  of  granting  an  interlocutory 
injunction.  It  appears  to  me  too  obvious  to  admit  of  any  dispute 
or  argument,  that  it  is  the  duty  of  the  chancellor  in  such  a  case, 
where  he  concludes  on  such  inquiry  that  there  siiould  be  no  pre- 
liminary injunction,  to  refuse  to  continue  the  stay.  If  the  argu- 
ment of  the  complainants  on  this  point  is  well  founded,  such  a 
stay,  though  followed  by  the  clearest  conviction  on  the  part  of 
the  court,  after  hearing  the  order  to  show  cause,  that  an  injunction 
ought  not  to  be  granted,  must  be  continued  because  of  the  mere 
fact  of  the  taking  of  an  appeal  by  the  complainants.  This  would, 
in  effect,  be  putting  into  the  complainants'  hands,  to  a  certain 
extent  at  least,  the  power  of  continuing  the  stay.  The  true 
ground  is,  that  tJie  question  whether  the  stay  shall  be  continued 
or  not  is  addressed  to  the  discretion  of  the  court,  and  the  fact 
that  the  complainants  have  appealed  from  the  order  discharging 


6  Stew.]  FEBRUARY  TERM,  1881.  379 

Hutchinson  v.  Abbott. 

it,  gives  them  no  right  whatever  to  its  continuauce,  and  in  no  way 
and  to  no  extent  whatever  binds  the  court  to  continue  it.  In  the 
case  under  consideration  there  is  no  ground  for  continuing  the 
stay.     The  motion,  therefore,  will  be  denied  with  costs. 


David  S.  Hutchinson 

V. 

Margaret  Abbott  et  al. 


1.  Usury  may  be  set  up  by  the  owners  of  the  premises  and  by  subsequent 
encumbrancers,  under  the  petition  of  the  holder  of  a  mortgage  for  the  surplus 
money  remaining  in  this  court  after  satisfying  prior  mortgages. 

2.  A  promise  by  one  of  the  mortgagors  to  the  assignee,  made  after  the 
assignment,  to  pay  the  interest  on  such  mortgage  promptly,  does  not  estop  him 
from  setting  up  usury  in  the  principal  or  in  the  interest  previously  paid ;  nor 
does  a  claim  by  one  of  the  mortgagors,  to  have  the  full  amount  of  such  mort- 
gage ded«cted  by  the  assessor  from  the  taxes  on  the  premises,  amount  to  an 
estoppel. 

Bill  to  foreclose.  On  application  by  petition  for  surplus 
money.     Exceptions  to  master's  report. 

Mr.  A.  G.  Richey,  for  petitioner. 

Mr.  J.  S.  AUkin,  for  respondents. 

The  Chancellor. 

This  is  an  application  for  the  payment  of  the  third  mortgage 
out  of  the  surplus  money  remaining  after  paying  out  of  the 
proceeds  of  the  sale  of  the  mortgaged  premises  under  the  exe- 
cution the  amount  due  on  the  f  rst  mortgage,  with  costs  and  exe- 
cution fees.     There  is  a  like  application  pending  in  behalf  of 


380  CASES  IN  CHANCERY.  [33  Eq. 

Hutchinson  v.  Abbott. 

the  holder  of  the  second  mortgage.  The  petitioner  is  Matthias 
H.  Miller.  His  mortgage  is  for  $1,000  and  interest,  and  was 
given  February  23d,  1872,  to  Edward  H.  Murphy,  and  by  him 
assigned  to  Miller,  July  2d,  1873.  The  contestants  are  the 
holders  of  the  fourth  and  fifth  mortgages,  and  the  widow,  execu- 
tors and  devisees  of  Edward  Abbott,  deceased.  All  the  mort- 
gages on  the  property,  except  the  first,  were  given  by  the  execu- 
tors. The  contestants  insist  that  Miller's  mortgage  was  invalid 
and  usurious  in  its  inception,  and,  if  valid,  is  subject  to  certain 
credits  for  excess  of  interest  paid  and  for  premium  taken  by 
Murphy  to  extend  the  time  of  payment  of  the  principal.  The 
fourth  and  fifth  mortgages  were  both  given  after  the  petitioner's 
mortgage  was  assigned  to  him.  The  master  to  whom  the  peti- 
tion was  referred  reported  that  the  sum  of  $800  only  of  princi- 
pal was  due  to  the  petitioner,  but  that,  under  the  facts  of  the 
case,  interest  should  be  allowed  upon  it,  deducting  the  excess  of 
interest  paid  on  the  mortgage  over  what  was  due  thereon  under 
those  facts ;  and  that  the  petitioner  was,  therefore,  entitled  to  re- 
ceive out  of  the  surplus  money,  after  payment  of  the  money 
due  on  the  second  mortgage,  $800,  with  interest  thereon  from 
April  1st,  1876,  less  such  excess  of  interest. 

The  master  finds  that  the  petitioner's  mortgage  was  and 
is  usurious;  that  when  it  was  made  it  was  agreed  between 
the  mortgagors  and  mortgagee  (Murphy)  that  the  latter 
should  advance  only  $900  of  the  $1,000  mentioned  in  and 
secured  to  be  paid  by  the  mortgage,  and  should  retain  $100  for 
premium  for  the  loan ;  and  he  also  finds  that  interest  was  paid 
on  the  $1,000  from  the  date  of  the  mortgage  to  April  1st,  1870 ; 
and  that  on  the  1st  of  April,  1873,  $100  were  paid  to  Murphy, 
by  agreement  between  him  and  the  mortgagors,  for  an  extension 
of  the  time  for  paying  the  principal  for  one  year.  He  therefore, 
allowing  interest  on  $800  from  April  1st,  1876,  up  to  which 
time  the  interest  was  paid,  to  the  time  of  payment  out  of  the 
surplus  fund,  deducts  $119.40  as  the  interest  on  $1,000  from 
the  date  of  the  mortgage  to  April  1st,  1873,  ($77.40),  and  in- 
terest on  $200  ($42)  from  the  latter  date  to  April  1st,  1876, 
together,  $119.40.  The  matter  comes  before  me  on  exceptions 
to  the  master's  report  by  petitioner  and  respondents. 


6  Stew.]  FEBRUARY  TERM,  1881.  381 

Hutchinson  v.  Abbott. 

It  will  be  proper  to  notice,  in  the  first  place,  the  exception 
taken  by  the  respondents  to  the  validity  of  the  petitioner's  mort- 
gage, the  allegation  being  that  the  executors,  by  whom  it  was 
given,  gave  it  without  authority.     The  will  provides  as  follows : 

"Should  any  one  or  more  of  my  children,  with  the  approbation  of  my 
executors,  deem  it  expedient  to  leave  their  common  household  before  the 
period  designated  for  the  inheritance  in  fee  simple  as  aforesaid,  and  live  sepa- 
rate from  the  cost  to  my  estate,  and  shall  desire  pecuniary  assistance  from  it 
to  aid  them  in  a  proper  business  or  situation,  I  hereby  authorize  my  execu- 
tors, if  the  same  meet  their  approbation,  to  borrow  or  obtain  on  my  estate  any 
sum  therefor,  not  exceeding  11,000,  to  pay  the  same  to  such  child  on  his  or 
their  receipt  therefor,  which  payment,  without  interest,  shall  be  accounted  for 
against  him  or  her  in  the  inheritance  and  distribution  as  aforesaid." 

The  answer  put  in  by  the  widow  and  executors  and  devisees 
of  Edward  Abbott  in  this  cause  merely  denies  that  the  peti- 
tioner's mortgage  is  a  valid  instrument,  and  alleges  that  if  valid, 
there  is  not  the  whole  amount  of  $1,000  due  thereon,  and  it 
also,  in  general  terms,  denies  the  validity  of  the  fourth  and  fifth 
mortgages.  There  is  no  proof  whatever,  however,  on  the  sub- 
ject, except  the  will,  and  by  that  the  executors  had  power,  under 
certain  circumstances,  as  appears  above,  to  mortgage  the  prop- 
erty. The  exception  under  consideration  will,  therefore,  be 
overruled. 

To  consider  the  exceptions  filed  by  the  petitioner:  It 
is  urged  in  his  behalf  that  the  contestants  cannot  set  up 
usury  against  him  because  it  has  not  been  pleaded  in  the  cause ; 
that  is,  because  the  holders  of  the  fourth  and  fifth  mortgages  filed 
no  cross-bill  alleging  the  usury,  in  which  way  alone  it  is  insisted 
they  could  have  availed  themselves  of  the  defence  of  usury  to 
their  codefendants'  nJortgage.  It  appears  that  neither  they  nor 
the  petitioner  answered  the  bill.  The  executors  and  devisees  did, 
but  did  not  set  up  usury.  Under  the  circumstances,  however, 
the  defence  may  be  made  on  the  application  for  surplus  money. 
In  Brinkerhoff  v.  Franklin,  6  C.  E.  Gr.  334,,  cited  by  petitioner's 
counsel,  where  one  defendant,  a  mortgagee,  had  answered,  im- 
peaching the  mortgage  of  another  defendant  who  had  not 
answered,  it  was  said  that  the  rights  of  the  defendants  could  be 


382  CASES  IN  CHANCERY.  [33  Eq. 

Hutchinson  v.  Abbott. 

settled  on  application  of  either  for  the  surplus  money  or  by  cross- 
bill, as  they  might  deem  best.  I  see  no  objection  to  permitting 
usury  to  be  set  up  in  this  case  on  this  application.  The  proceed- 
ing is  a  direct  one,  an  application  to  the  court  for  payment  of  the 
petitioner's  mortgage  out  of  the  surplus.  The  other  defendants 
are  called  into  court  to  respond  to  the  claim,  and  they  may  do  so 
by  setting  up  usury.  But  it  is  insisted  that  there  was  no  usury, 
and  if  there  was  the  mortgagors  would  be,  and  those  who  claim 
under  them  are,  estopped  from  setting  it  up.  The  proof,  how- 
ever, is  that  when  the  petitioner's  mortgage  was  made,  Murphy, 
the  mortgagee,  took  a  premium  for  the  loan  of  $100.  Murphy 
testifies  that  the  application  for  the  loan  was  made  to  him  by 
Samuel  L.  Abbott,  one  of  the  mortgagors,  (who  seems  to  have 
negotiated  it),  and  that  on  the  application  he  told  Abbott  he 
would  charge  him  $100  for  making  the  loan.  Abbott  swears 
that  the  $100  were  not  for  expenses,  but  for  a  "  bonus,"  and 
Murphy  does  not  deny  it.  The  mortgagors  received  only  $900. 
The  usury  is  clearly  proved.  It  is  also  proved  that  on  the  21st 
of  March,  1873,  a  note  for  $100  at  one  year  was  given  by  two 
of  the  mortgagors  to  Murphy,  pursuant  to  agreemwit  between 
them  and  him  in  consideration  of  his  agreement  to  extend  the 
time  for  payment  of  the  mortgage  for  one  year,  and  the  note 
appears  to  have  been  paid.  The  master  properly  credited  the 
amount  of  this  note  on  the  principal  of  the  mortgage.  Nightin- 
gale V.  Meginnis,  5  Vr.  J^61 ;  Trusdell  v.  Janes,  8  C.  E.  Gr.  1^1 ; 
S.  C,  oyi  appeal,  Id.  654  /  Terhune  v.  Tayl(yr,  12  C.  E.  Gr.  80. 

But  the  petitioner  insists  that  the  mortgagors  and  the  holders 
of  the  fourth  and  fifth  mortgages  are  estopped  from  setting  up 
usury  or  claiming  a  credit  for  that  payment,  because  when  the 
petitioner  in  October  next  succeeding  the  date  of  the  assignment 
to  him,  which  was  in  April,  called  on  Samuel  L.  Abbott  for 
payment  of  the  interest  then  due  on  his  mortgage  and  conse- 
quently informed  him  that  he  had  become  the  owner  of  the 
mortgage  by  assignment,  Abbott  promised  to  pay  the  interest 
on  the  mortgage  as  it  should  become  due.  As  the  petitioner 
states  it,  what  was  said  on  the  subject  was  as  follows :  The  peti- 
tioner told  Abbott  that  he  had  got  the  mortgage  from  Murphy. 


6  Stew.]  FEBRUARY  TERM,  1881.  383 

Hutchinson  v.  Abbott. 

Abbott  said  that  Murphy  had  not  told  him  he  was  going  to  part 
with  it,  and  said  he  supposed  the  petitioner  would  keep  it,  or 
something  to  that  effect.  The  petitioner  replied  that  he  supposed 
he  might  do  so  provided  the  interest  was  promptly  paid,  and 
Abbott  said  that  should  be  done.  Abbott  admits  that  he  said 
something  to  the  effect  also  that  the  mortgage  was  a  safe  one. 
This  promise  to  pay  the  interest  promptly  while  the  petitioner 
should  continue  to  hold  the  mortgage,  operates  as  an  estoppel,  so 
far  as  the  interest  thereafter  paid  was  concerned ;  for  it  is  to  be 
presumed  that  on  the  faith  of  it  the  petitioner  continued  to  hold 
his  mortgage  as  otherwise  he  might  not  have  done.  But  the 
estoppel  does  not  extend  to  the  principal,  for  the  petitioner,  when 
he  took  the  assignment  of  his  mortgage,  did  not  do  so  on  any 
representation  whatever  in  any  way  of  the  mortgagors  or  any  of 
them.  When  he  went  to  see  Samuel  L.  Abbott  it  was  not  until 
six  months  after  he  had  got  the  mortgage.  It  is  enough  to  say  « 
that  it  is  obvious  that  Abbott  was  under  no  obligation  to  make 
any  statement  or  give  any  warning  as  to  the  mortgage,  the 
amount  actually  secured  by  it,  its  liability  to  the  defence  of  usury 
or  any  other  defence,  or  to  speak  as  to  its  sufficiency  or  collecti- 
bility or  otherwise.  Having  undertaken  to  pay  the  interest  he 
is  estopped  by  the  promise  for  the  reason  before  given,  but  neither 
he  nor  those  claiming  under  him  are  estopped  from  making 
defence  as  to  the  principal  or  from  claiming  the  application 
thereto  of  the  $100  paid  for  extension. 

Nor  does  any  estoppel  arise  from  the  fact  that  one  of  the  mort- 
gagors, in  the  assessment  of  taxes  upon  the  mortgaged  premises, 
claimed  a  deduction  of  $1,000  as  the  principal  of  the  mortgage. 
That  was  not  a  representation  made  to  the  petitioner,  and  besides  it 
appears  to  have  been  made  as  late  as  1876.  The  principle  on  which 
the  amount  due  on  the  petitioner's  mortgage  should,  under  the  cir- 
cumstances, be  computed,  is  to  allow  $800  only  of  principal  and  all 
interest  paid  up  to  April  1st,  1876,  from  which  date  the  interest  is 
in  arrear,  and  interest  on  $800  thereafter  at  seven  per  cent,  per 
annum,  the  rate  which  the  bond  bears,  until  the  money  be  paid, 
deducting  the  interest  ($14.50)  on  the  $100  retained  on  the 
making  of  the  loan,  from  the  date  of  the  mortgage,  February 


384  CASES  IN  CHANCERY.  [33  Eq. 

McKeown  v.  McKeown, 

23d,  1872,  to  March  24th,  1874,  when  the  $100  note  given  for 
premium  for  extension  fell  due  and  was  paid,  and  the  interest 
(|28.30)  on  $200  from  that  time  to  the  1st  of  April,  1876.  The 
petitioner  is,  under  the  circumstances,  entitled  to  his  costs  of  suit, 
including  costs  of  his  exceptions.  The  priority  or  validity  of  the 
second  mortgage  appears  not  to  be  disputed. 


Mary  Ann  McKeown 


V, 


John  James  McKeown  et  al. 

A  resulting  trust  in  lands  claimed  from  the  payment  of  the  purchase-money 
thereof,  either  by  the  complainant  alone  or  in  common  with  others,  will  not 
be  raised  against  the  consideration  clause  of  the  deed,  and  after  great  delay  on 
complainant's  part,  except  by  clear  proof. 


Bill  for  relief.     On  final  hearing  on  pleadings  and  proofs. 

Mr.  J.  Lippencott,  for  complainant. 

Mr.  J.  Chapman,  for  John  James  McKeown. 

The  Chancellor. 

This  suit  is  brought  to  establish  a  resulting  trust  in  favor  of 
the  complainant  in  a  house  and  two  lots  of  land  in  Weehawken, 
the  title  whereto  is  in  her  brother  jj'ohn.  The  defendants  are 
John  and  his  wife,  and  another  brother,  Joseph,  and  his  wife. 
The  latter  two  are  made  parties  on  account  of  a  conveyance  of 
the  property  in  question  made  by  John  to  Joseph  in  1872.  The 
latter  swears,  however,  that  the  conveyance  to  him  was  to  secure 
a  loan,  which  was  repaid  and  the  property  reconveyed.     The 


6  Stew.]  FEBRUARY  TERM,  1881.  385 

McKeown  v.  McKeown. 

allegation  of  the  bill  on  which  the  complainant's  claim  rests,  is, 
that  she  being  out  at  service  and  making  good  wages,  and  hav- 
ing little  or  no  personal  expenses,  laid  up  her  money  for  years 
in  her  mother's  hands,  on  the  understanding  and  agreement  that 
when  the  deposit  should  amount  to  enough  for  the  purpose,  it 
should  be  employed  by  her  mother  in  buying  a  house  for  her ; 
that  in  pursuance  of  that  understanding  and  agreement  her 
mother  purchased,  for  $400,  the  land  in  question,  paying  for  it 
out  of  the  complainant's  money  in  her  hands,  and  afterwards, 
with  like  funds,  built  a  two-story  frame  house,  at  a  cost  of  $1,000, 
on  it ;  that  the  complainant,  so  soon  as  the  building  was  com- 
pleted, moved  into  it  and  had  exclusive  use  of  one  room  (she 
still  however,  it  appears,  continued  at  service),  and  occupied  the 
rest  of  the  house  in  common  with  her  father  and  mother ;  that 
she  always,  up  to  the  time  when  John  ejected  her  from  the  pro])- 
erty  and  took  exclusive  possession  himself,  which  was  May  1st, 
1872,  supposed  that  the  title  had  been  taken  in  her  name,  but 
she  then  found  it  had  been  taken  in  his.  The  proof  on  her  part 
consists  of  her  testimony  as  to  her  depositing  her  wages  with  her 
mother  for  safe  keeping,  and  verbal  statements  made  by  her 
mother  as  to  the  money  with  which  the  lot  was  purchased  and 
the  house  built,  and  a  statement  made  by  John  that  he  borrowed 
the  money  to  build  the  house  from  his  mother.  The  testimony 
as  to  the  statements  of  the  mother  is  incompetent,  and  if  it  were 
not  so,  it  would  be  entirely  unreliable.  She  appears  to  have  said, 
on  one  occasion,  that  the  property  was  "between  John  and  Mary 
Ann"  (the  complainant),  that  they  both  had  money  in  it ;  and  on 
another  occasion  she  said  that  it  belonged  to  both  of  them,  and 
that  their  father  had  some  money  in  it  too.  In  the  same  con- 
versation she  claimed  the  property  as  her  own.  On  the  trial  of 
an  indictment  in  1872,  against  John  and  his  father  for  an  assault 
and  battery  on  Mary  Ann,  she  swore  that  not  a  penny  of  Mary 
Ann's  money  was  in  the  house,  nor  the  money  of  any  one  else 
but  John.  Mary  Ann  had,  on  the  trial,  sworn  that  she  owned 
the  property.  It  would  seem  that  both  Mary  Ann  and  her  sister, 
Mrs.  Currie  (sworn  for  her  in  this  cause),  charged  their  mother 
with  having  perjured  herself  in  that  statement.     The  statements 

25 


386  CASES  IN  CHANCERY.  [33  Eq. 

McKeown  v.  McKeown. 

of  the  mother  on  the  subject,  if  competent,  would  manifestly  be 
of  but  little  value.  But  the  case  shows  the  purchase  by  John  of 
the  lots  in  1866,  for  $400,  and  he  swears  that  he  paid  that  money 
with  his  own  money ;  that  of  the  $400,  $200  were  money  which 
he  had  in  a  savings  bank,  and  the  rest  was  money  which  he  had 
in  his  mother's  hands,  where  he  had  placed  it  for  safe  keeping. 
He  built  the  house.  He  swears  that  he  paid  for  it  entirely  with 
his  own  money  and  money  which  he  borrowed,  but  that  he 
borrowed  only  $170  of  it  from  his  mother,  which  he  repaid  to 
her.  He  exercised  all  acts  of  ownership  over  the  property,  pay- 
ing taxes  for  it  as  his  own,  and  obtaining  insurance  on  the  build- 
ing as  his  property,  and,  as  far  as  appears,  his  absolute  right  to 
the  property  was  not  questioned  until  1872.  It  was  then  denied 
by  the  complainant,  but  she  did  not  file  her  bill  until  September, 
1878.  The  mother  did  not  die  until  the  summer  of  1874,  so 
that  the  complainant  for  two  years  or  thereabouts,  while  her 
mother  was  living,  after  her  claim  was  denied  both  by  John  and 
her  mother,  took  no  steps  to  establish  her  claim  to  the  property. 
And  it  was  not  until  four  years  after  her  mother's  death  and  six 
years  after  her  right  to  the  property  was  denied  that  she  brought 
her  suit.  Her  delay  may  be  accounted  for  by  her  ignorance  and 
helplessness.  As  before  stated,  she  was  a  servant,  and  it  is  quite 
probable  that  she  is  fairly  to  be  regarded  as  inops  consilii;  and 
her  delay  is,  indeed,  not  to  be  looked  upon  as  the  delay  of  those 
better  aware  of  their  rights,  and  the  means  by  which  they  may 
be  maintained,  would  be.  Yet  it  is  unfortunate  for  her  that, 
for  whatever  reason,  her  application  for  relief  was  deferred  until 
after  the  death  of  her  mother.  It  appears,  too,  by  the  evidence 
of  Joseph,  who  swears  that  the  land  was  purchased  and  the  house 
built  by  James,  with  his  own  money,  that  when  John  bought 
the  property  he  showed  Joseph  the  deed,  and  that  the  latter  read 
it  in  the  presence  and  hearing  of  the  complainant.  He  swears, 
also,  that  the  complainant  had  an  account  in  the  Greenwich  Sav- 
ings Bank ;  that  he  saw  her  bank-book  and  was  with  her  wlien 
she  made  a  deposit  there,  which  she  said  was  $140,  and  he  swears 
that  she  said  it  was  the  last  of  the  money  which  John  owed  her, 
and  that  she  had  got  it  from  her  mother.     John  swears  that  he 


6  Stew.]  FEBKUARY  TERM,  1881.  387 

McKeown  v.  McKeown. 

repaid  the  $170  in  several  payments,  the  last  of  which  was  $140. 
All  the  documentary  evidence  is  in  favor  of  John,  and  he  swears 
(and  he  is  corroborated  in  material  ];espects  by  Joseph)  that  he 
bought  the  land  and  built  the  house  entirely  with  his  own  money 
or  money  which  he  borrowed.  If  any  money  of  Mary  Ann's 
which  was  not  repaid,  indeed,  went  into  the  property,  I  am  unable 
to  find  clear  proof  of  it;  and  it  is  established  that  when  a  trust 
is  sought  to  be  raised  as  a  resulting  trust  from  the  payment  of  the 
purchase-money,  the  proof  must  be  very  clear  of  the  payment  of 
the  purchase-money  by  the  person  in  whose  favor  a  trust  by  im- 
plication of  law  is  sought  to  be  raised ;  the  fact  must  be  distinctly 
establisiied  by  satisfactory  evidence.  And  further,  that  a  result- 
ing trust  will  not  be  held  to  arise  upon  payments  made  in  common 
by  one  asserting  his  claim  and  the  grantee  in  the  deed,  when  tl)e 
consideration  is  set  forth  in  the  deed  (as  it  is  in  this  case)  as  mov- 
ing solely  from  the  latter,  unless  satisfactory  evidence  is  offered, 
exhibiting  the  portion  which  was  really  the  property  of  each,  and 
establishing  the  fact  that  the  payment  was  made  for  some  specific 
part  or  distinct  interest  in  the  estate.  Cutler  v.  Tuttle,  4-  C.  E. 
Gr.  54-9.  In  this  case,  as  was  said  in  the  case  just  cited,  the  tes- 
timony relied  on  is  unsatisfactory  as  to  the  question  whether  any, 
and  if  so,  what  portion  of  the  consideration  money  of  the  convey- 
ance was  the  property  of  the  complainant,  and  is  too  unreliable 
to  justify  the  court  in  divesting  a  title  evidenced  by  deed  of  con- 
veyance, and  in  favor  of  a  person  whose  claim  is  rested  on  the 
uncertain  foundation  of  parol  proof.  It  is  true  that  McAtavey 
swears  that  while  John  was  building  the  house,  he  told  him  that 
he  got  the  money  for  building  it  from  his  mother,  but  the  defend- 
ant absolutely  and  positively  denies  it.  He  says  that  the  build- 
ing cost  him  between  $900  and  $1,000;  that  he  had  to  borrow 
some  of  the  money  to  pay  for  it;  that  he  borrowed  $100  of  John 
M.  Gibson  and  $100  of  his  brother  Joseph,  and  about  $170  from 
his  mother,  $370  in  all,  and  furnished  the  rest  of  the  money  him- 
self. Again,  the  admission  is,  at  most,  that  he  obtained  the  money 
from  his  mother,  not  from  the  complainant;  and,  besides,  it  is 
not  necessarily  a  confession  that  he  obtained  all  of  the  money  to 
build  the  house  from  that  source.     He  admits  that  he  borrowed 


888  CASES  IN  CHANCERY.  [33  Eq. 

Van  Doren  v.  Dickerson. 

$170  from  his  mother  to  aid  him  in  building,  but  swears  that  he 
repaid  it,  adding  $30  to  it  to  cover  interest.  I  think  it  is  quite 
probable  that  money  which  his  mother  received  from  Mary  Ann 
for  safe  keeping  went  into  the  property ;  but  the  burden  of  proof 
is  on  the  complainant,  and  I  cannot  find  such  evidence  of  the 
necessary  facts  as  would  warrant  a  decree  in  her  favor. 
The  bill  will  be  dismissed,  but  without  costs. 


Emma  Van  Doeen 

V. 

Charles  S.  Dickerson  et  al. 


On  a  sale  of  lands,  $500  were  retained  by  the  purchaser,  out  of  the  consider- 
ation, as  an  indemnity  against  an  alleged  right  of  dower  in  the  premises,  and  a 
bond  and  mortgage  thereon,  given  by  him  to  the  vendor  to  secure  that  amount 
and  "lawful"  interest,  the  principal  payable  only  on  the  extinguishment  of  the 
claim. — Hdd, 

(1)  That  the  mortgage  could  be  foreclosed  for  arrears  of  interest,  although 
the  principal  had  not  become  due  through  the  extinguishment  of  the  alleged 
claini  of  dower. 

(2)  That  the  dower  claimant  could  not,  on  this  foreclosure,  although  made  a 
party  defendant,  be  required  to  litigate  her  right  to  dower  in  the  premises. 


Bill  to  foreclose.     On  final  hearing.     On  pleading  and  stipu- 
lation as  to  facts. 

Mr.  0.  Jeffery,  for  complainant. 

Mr.  F.  D.  Smith,  for  defendants  Dickerson  and  wife. 


6  Stew.]  FEBRUARY  TERM,  1881.  389 

Van  Doren  v.  Dickerson. 

The  Chancellor. 

The  mortgage  which  the  bill  in  this  suit  was  filed  to  foreclose, 
was  made  to  secure  the  payment  of  a  bond  given  in  1864  by 
John  W.  Lee  to  Peter  T.  B.  Van  Doren,  in  the  penalty  of  $500, 
with  the  following  condition  : 

"  Whereas,  the  said  Peter  T.  B.  Van  Doren,  by  a  deed  dated  March  Slst, 
1864,  duly  executed  by  himself  and  wife,  and  delivered  this  day,  hath  con- 
veyed unto  said  John  W.  Lee,  two  certain  tracts  of  land  situate  in  the  village 
of  Denville,  in  said  county  of  Morris,  whicli  lands  were  formerly  owned  by 
Francis  Lindsly,  and  are  particularly  described  in  said  deed,  to  which,  for  a 
description  thereof,  reference  is  hereby  made ;  and  whereas,  it  is  alleged,  though 
not  admitted,  but  denied  by  the  parties  hereto,  that  the  wife  of  said  Francia 
Lindsly  has,  or  claims  to  have,  an  inchoate  right  of  dower  in  said  lands ;  and 
whereas,  it  was  understood  by  said  John  W.  Lee  that  he  was  to  have  a  clear 
title  to  said  lands,  and  it  has  been  agreed  by  said  parties  to  leave  in  the  hands 
of  said  John  W.  Lee,  five  hundred  dollars  of  the  said  purchase-money  ae  an 
indemnity  against  any  such  claim  of  dower  by  the  wife  of  said  Francia 
Lindsly : 

Now,  therefore,  the  condition  of  this  obligation  is  such  that  if  the  above- 
named  John  W.  Lee,  or  his  heirs,  executors  or  administrators,  shall,  at  any 
time  hereafter,  when  said  Van  Doren  shall  deliver  to  him  or  them  a  release 
of  all  claim  to  said  land  and  premises  hereinbefore  mentioned,  duly  executed 
and  acknowledged  by  said  Francis  Lindsly  and  wife,  or  by  the  wife  of  said 
Lindsly,  in  case  she  shall  survive  her  husband,  pay  to  said  Van  Doren,  or  his 
executors,  administrators  or  assigns,  the  said  sum  of  five  hundred  dollars,  and 
in  the  meantime  shall  pay  to  said  Van  Doren,  or  his  executors,  administrators 
or  assigns,  the  lawful  interest  on  said  five  hundred  dollars  annually,  during 
the  joint  lives  of  said  Francis  Lindsly  and  wife ;  or  if,  in  case  the  said  Julia  P. 
Lindsly  shall  die  in  the  lifetime  of  her  said  husband,  the  said  John  W.  Lee 
siiall  pay  the  said  five  hundred  dollars  at  her  decease,  the  interest  being  paid 
as  above  mentioned ;  or,  in  case  the  said  release  shall  not  be  executed,  and  said 
Julia  P.  shall  survive  her  said  husband  and  shall  claim  her  right  of  dower  in 
said  premises,  if  the  said  Peter  T.  B.  Van  Doren,  or  his  heirs,  executors  or 
administrators  shall,  at  all  times,  fully  indemnify  said  John  W.  Lee,  his  heirs 
and  assigns,  and  save  them  harmless  against  said  claim,  and  against  all  costs 
and  damages  which  he  may  be  put  to  or  sustain  by  reason  thereof,  and  the  said 
John  W.  Lee,  or  his  executors  or  administrators,  shall  pay  said  sum  of  five 
hundred  dollars,  with  the  interest  which  may  have  accrued  tliereon ;  or,  in 
case  said  Julia  shall  survive  her  husband,  and  shall  die  without  making  any 
claim  to  said  premises,  if,  at  her  decease,  said  Lee,  or  his  executors  or  admin- 
istrators shall  pay  said  five  hundred  dollars  with  interest,  then  said  bond  or 
obligation  to  be  void,  or  else  to  be  and  remain  in  force.  It  is,  however,  under- 
stood that  in  no  event  is  said  money  to  be  payable  until  one  year  from  the  dale 
hereof.'* 


390  CASES  IN  CHAXCERY.  [33  Eq. 

Van  Doren  v.  Dickerson. 

In  1869,  Lee  conveyed  the  mortgaged  premises  to  the  defendant 
Charles  S.  Dickerson.  In  1880,  Van  Doren  assigned  the  bond 
and  mortgage  to  the  complainant.  When  the  bill  was  filed  there 
was  interest  due  and  in  arrear.  The  bill  was  filed  not  only 
against  Dickerson  and  his  wife,  but  also  against  Mr.  and  Mrs. 
Lindsly  mentioned  in  the  condition  of  the  bond,  the  latter  per- 
sons being  made  parties  in  respect  to  the  claim  of  dower  men- 
tioned in  the  condition  of  the  bond,  and  which  it  was  designed 
thus  to  litigate  in  order  to  establish  the  fact  in  this  suit  that  Mrs. 
Lindsly  had  no  dower,  contingent  or  otherwise,  in  the  property. 
The  Lindslies  did  not  answer  the  bill,  but  Dickerson  and  his  wife 
did.  By  the  answer,  the  right  of  the  complainant  to  a  foreclosure 
of  the  mortgage  is  denied,  on  the  ground  that  the  principal  of  the 
bond  is  not  due  according  to  the  terms  of  the  condition ;  Mrs. 
Lindsly  having  never  released  her  claim  to  dower  in  the  premises. 
The  answer,  while  it  does  not  claim  that  there  is  no  interest  due 
and  in  arrear,  insists  that  certain  payments  of  interest,  which 
have  been  made  at  the  rate  of  seven  per  cent,  per  annum,  were 
in  excess  of  the  amount  due  at  the  times  when  they  were  made, 
because  the  interest  which  the  mortgage  bore  was  only  six  per 
cent.,  seeing  that  that  was  the  legal  rate  when  the  mortgage  was 
given,  and  the  mortgage  calls  for  "  lawful"  interest.  And  they 
ask  that  an  account  be  taken  of  the  excess,  and  that  it  be  credited 
on  account  of  interest ;  but  they  offer  to  pay  any  interest  which 
may  be  shown  to  be  due  and  in  arrear. 

There  can  be  no  doubt  of  the  right  of  the  complainant  to  a 
foreclosure  of  the  mortgage  for  arrears  of  interest.  The  interest 
was,  by  the  terms  of  the  condition  of  the  bond,  payable  annually. 
The  interest  paid  was  up  to  April  1st,  1869,  at  the  rate  of  six  per 
cent,  per  annum.  That  was  the  legal  rate  at  the  date  of  the  bond, 
and  from  thence  up  to  March  15th,  1866,  when  it  was  changed  to 
Beven,  and  it  so  remained  until  July  4th,  1878,  when  it  was  changed 
to  six.  From  April  1st,  1869,  the  interest  paid  aj^pears  to  have 
been  at  the  rate  of  seven  per  cent.,  probably  by  agreement,  though 
there  is  no  proof  on  that  head.  In  the  absence  of  any  agreement 
to  pay  seven  per  cent.,  the  interest  would  be  now  payable  at  six 
per  cent.     Jersey  City  v.  O'CaUaghan,  12  Vr.  34.9.     But  if  there 


6  Stew.]  FEBRUARY  TERM,  1881.  391 

Van  Doren  v.  Dickerson. 

was  an  agreement  to  pay  seven  per  cent,  while  that  was  the  legal 
rate,  the  answering  defendants  are,  of  course,  entitled  to  no  credit 
for  the  dijBTerence  in  rate.  Conover  v.  Lewis,  6  C.  E.  Gr.  S30. 
The  mortgage  was  given  to  secure  the  payment  of  the  interest  as 
well  as  the  payment  of  the  principal ;  and,  though  the  principal 
is  not  due,  the  holder  of  the  mortgage  is  entitled  to  foreclose  for 
the  interest  in  arrear. 

Our  statute  {Rev.  117  §  71}.)  provides  that  when  a  decree  of 
the  court  of  chancery  shall  be  made  for  the  sale  of  mortgaged 
premises  (in  cases  where  the  whole  sum  secured  by  the  mort- 
gage is  not  due),  either  for  non-payment  of  any  portion  or  install- 
ment of  the  debt  or  demand  intended  to  be  secured  by  the  mort- 
gage, or  the  non-payment  of  interest  due,  or  both,  and  it  shall 
appear  to  the  court  that  a  part  of  the  mortgaged  premises  cannot 
be  sold  to  satisfy  the  amount  due  without  material  injury  to  the 
remaining  part  of  the  mortgaged  premises,  and  that  it  is  just  and 
reasonable  that  the  whole  of  the  mortgaged  premises  should  be 
«old  together,  it  shall  and  may  be  lawful  for  the  said  court  to 
decree  a  sale  to  be  made  of  the  whole  of  the  mortgaged  prem- 
ises, and  to  apply  the  proceeds  of  the  sale  of  said  premises,  or 
so  much  thereof  as  shall  be  necessary,  as  well  to  the  payment  of 
the  interest,  installments  or  portions  then  due,  and  also  the  costs 
then  due  and  payable,  as  to  the  payment  of  the  whole  or  residue 
of  the  debt  or  demand  which  hath  not  become  due  and  payable, 
and  the  residue  of  the  proceeds  of  such  sale  to  be  paid  to  the 
person  or  persons  entitled  to  receive  the  same,  or  to  be  brought 
into  court  to  abide  the  further  order  of  the  court,  as  the  equity 
and  circumstances  of  the  case  require ;  provided,  always,  that 
when  the  residue  of  the  debt  or  demand  intended  to  be  secured 
by  tiie  said  mortgage  is  payable  at  a  future  day  without  interest, 
and  the  mortgagee  is  willing  to  receive  the  same,  the  court  shall 
deduct  a  rebate  of  legal  interest  for  what  the  mortgagee  shall  re- 
ceive on  the  said  debt  or  demand,  to  be  computed  from  the  time 
of  the  actual  payment  thereof  to  the  time  such  residue  of  the 
debt  or  demand  would  have  become  due  and  payable. 

In  such  a  case  as  this  the  court  will  see  to  it  that  the  rights 
of  the  parties  are  secured  and  protected,  and  will  give  direction 


392  CASES  IN  CHANCERY.  [33  Eq. 

Van  Doren  v.  Dickereon. 

to  the  proceedings  accordingly.  Am.  L.  I.  &  T.  Co.  v.  Ryerson, 
2  Hal.  Ch.  9 ;  Campbell  v.  Macomb,  Jf,  Johns.  Ch.  BSlf, ;  Brinck- 
erhoff  V.  Thallhimer,  S  Johns.  Ch.  IfS6 ;  Lyman  v.  Sale,  Id.  4^7. 
The  question  as  to  whether  Mrs.  Lindsly  has  contingent 
dower  in  the  premises  has  not  been  settled  by  her  default  in  this 
suit.  She  was  not  a  proper  party  to  the  bill,  and  could  not  be 
called  upon  to  litigate  the  question  in  the  suit  to  all  the  matters 
wherein  she  was  a  stranger.  Wilkins  v.  Kirkbride,  12  C.  E.  Gr.  93, 
and  cases  there  cited ;  Eagle  Fire  Co.  v.  Lent,  6  Paige  685  ;  S.  P. 
Gihan  v.  Bdleville  Lead  Co.,  3  Hal.  Ch.  531.  The  principal  of 
the  mortgage  is  not  due.  The  answering  defendants,  as  before 
stated,  tender  themselves  ready  to  pay  the  interest.  If  they  pay 
it,  with  the  costs  of  this  suit,  the  proceedings  will  be  stayed, 
otherwise  there  will  be  an  order  of  reference,  to  inquire  whether 
a  competent  part  of  the  mortgaged  premises  can  be  sold  without 
injury  to  the  remainder,  to  pay  the  interest  and  costs.  In  case 
the  interest  and  costs  are  paid,  or  in  case  of  sale  to  raise  and 
pay  them,  the  complainant  will  be  at  liberty  hereafter,  from  time 
to  time,  as  the  annual  interest  shall  accrue  and  be  unpaid,  or 
when  the  principal  shall  become  due,  to  go  before  a  master  on 
the  foot  of  the  decree  in  this  cause,  and  obtain  a  report  as  to  the 
sum  then  due  and  payable,  to  the  end  that  on  sucli  report  being 
made  to  this  court,  an  order  may  thereupon  be  made  for  a  sale 
of  the  premises  (or  of  the  residue,  if  a  sale  shall  have  been 
made  of  part,  to  raise  and  pay  the  interest  now  due  and  costs), 
or  a  competent  part  or  parts  thereof  to  satisfy  what  shall  be  re- 
ported to  be  due,  with  the  costs  attending  such  report  and  sale. 


6  Stew.]  FEBRUARY  TERM,  1881.  393 

Weiland  v.  Townsend. 

CoNEAD  F.  "Weiland 

V. 

Nathaniel  Townsend  et  al. 

A  trustee  was,  by  a  will,  clothed  with  extensive  discretionary  powers,  and 
there  was  no  provision  for  succession  in  the  trust  in  case  of  his  failure  to  act. 
He  died — Held,  that  this  court  would  execute  the  trust  through  a  successor 
to  be  appointed  by  it,  and  by  substituting  equitable  rules  in  the  place  of  arbi- 
trary power. 


Bill  for  relief.     On  final  hearing  on  pleadings  and  proofs. 

Mr,  A.  Flanders,  for  complainant. 

Mr.  J.  H.  Rogers,  for  defendant  N.  Townsend. 

The  Chancellor. 

This  suit  is  brought  by  Conrad  Weiland  in  his  own  behalf, 
and  as  guardian  of  his  two  minor  children,  the  offspring  of  his 
deceased  wife,  Annie,  daughter  of  George  Wylie,  deceased,  late 
of  Paterson,  against  Nathaniel  Townsend,  administrator  cum 
tesiamento  annexo,  and  trustee  under  the  will  of  George  Wylie 

Note. — The  following  cases  show  what  words  have  been  held  to  confer  such 

a  trust,  coupled  with  a  power,  as  a  court  of  equity  could  enforce  after  the  death 
or  removal  of  a  trustee  vested  with  discretionary  powers : 

Bartley  v.  Bartley,  3  Drew.  384,  "  at  his  or  their  entire  discretion  to  pay  rents 
for  the  benefit  of  one,  two  or  more  of  the  children  of  A  B,  the  tenant  for 
life,"  with  a  power  to  appoint  new  trustees;  but  they  all  died  without  any  new 
appointment. 

Heviett  V.  Hewett,  2  Eden  332,  power  for  devisees  for  life  to  cut  down  such 
timber  as  four  trustees  or  the  survivor  "  should  assign,  allow  or  direct ;"  and 
all  of  the  trustees  were  dead. 

Maberly  v.  Turton,  14  Fes.  499,  a  power  to  apply  dividends  for  the  mainte- 
nance of  children,  with  the  approbation  of  their  parents ;  and  none  of  the 
trustees  ever  acted. 


394  CASES  IN   CHANCERY.  [33  Eq. 

Weiland  r.  Townsend. 

and  Jaue  Wylie,  the  widow  of  the  testator,  and  Georglana  and 
Martha  Wylie,  her  children  by  liim,  and  John  F.  Wylie,  his 
son  by  a  former  wife.  The  principal  object  of  the  suit  is  to 
obtain  an  immediate  distribution  of  the  testator's  estate  (it 
appears  to  be  all  personal),  which  is  now  in  the  hands  of  Town- 
send,  as  administrator  and  trustee,  as  above  mentioned,  among 
the  next  of  kin  of  the  testator.  The  testator  died  on  or  about 
the  1st  of  June,  1867.  By  his  will,  after  directing  that  his 
debts  be  paid,  he  provided  as  follows : 

"  I  order  and  direct,  further,  that  the  whole  of  the  balance  of  my  estate,  of 
whatsoever  nature  and  wheresoever  situate,  be  and  it  is  hereby  placed  in  trust 
ill  the  hands  of  my  executor  and  trustee  below  named,  who  shall  be  and  is 
empowered  and  directed  to  carry  out  and  complete  certain  business  engage- 
ments in  which  I  am  now  interested,  to  form  new  engagements  of  like  nature, 
to  buy  and  sell  property  as,  in  his  discretion  and  judgment,  I  myself  might  do. 

"  I  further  order  and  direct  that  the  members  of  my  immediate  family  shall 
be  provided  for  by  my  said  trustee  out  of  my  estate,  each  member  thereof  to  re- 
ceive an  equal  allowance,  the  amount  of  which  shall  be  subject  to  the  discre- 
tion of  my  said  trustee;  but  each  sum  shall  be  at  least  sufficient  in  such  case 
to  keep  the  recipient  thereof  from  actual  want. 

"  I  further  order  and  direct  that  the  trust  which  I  hereby  create  shall 
cease  and  determine  at  the  end  of  twenty-one  years,  when  the  balance  of  my 
estate  remaining  after  the  performance  of  the  above  conditions,  shall  be 
divided  among  my  then  legal  representatives  and  assigns,  in  such  propor- 
tions as  to  my  said  trustee  may  seem  just  and  proper  ;   and  I  do  hereby  em- 


Lockwood  V.  Stradley,  1  Dd.  Ch.  298,  a  trust  in  executors  and  their  survivor 
"to  sell  lands  at  such  time  or  times  as  they  can  do  it  to  the  best  advantage 
♦  *  *  as  they  may  think  best  in  their  discretion,"  and  to  invest  and  ulti- 
mately divide  the  proceeds ;  all  the  executors  being  dead. 

Ball  v.  Bull,  8  Conn.  47,  "  to  A  and  B  *  *  *  with  full  confidence  that 
they  will  *  *  *  dispose  of  such  residue  among  our  brothers  and  sisters 
and  their  children  as  they  shall  judge  shall  be  most  in  need  of  the  same ; 
this  to  be  done  according  to  their  best  discretion."  Both  A  and  B  died.  See 
also  OUbert  v.  Chapin,  19  Conn.  350. 

Mastin  v.  Barnard,  33  Ga.  520,  in  trust  for  testator's  daughters,  "provided 
that  my  said  executors  may  allow  to  the  husbands  of  my  daughters  the  net 
general  proceeds  of  their  shares,  if  they  think  it  prudent  to  do  so."  They 
turned  over  one  daughter's  share  to  her  husband,  who  afterwards  died. 

aty  of  Portsmouth  v.  Shackford,  46  N.  H.  423,  "  to  dispose  of,  for  the  benefit 
of  my  brothers  and  sisters,  as  he  [the  trustee]  might  from  time  to  time  judge 
I  would  have  done,  if  I  could  have  foreseen  the  circumstances." 


6  Steav.]  FEBRUAHY  TERM,  1881.  395 

Weiland  v.  Townsend. 

power  him  to  make  such  division  according  to  his  best  discretion  and  judg- 
ment ;  and,  in  making  such  disposition  of  my  estate,  I  am  governed  bv  con- 
clusions whicli  are  the  result  of  long  and  careful  reflection. 

"  And  I  do  hereby  appoint  as  such  trustee,  and  also  as  executor  of  this  will, 
Francis  A.  Canfield,  in  full  confidence  that  its  provisions  will  be  faithfully 
executed." 

The  will  was  proved  in  Passaic  county,  and  letters  testa- 
mentary thereon  issued  to  Francis  A.  Canfield,  on  or  about  the 
15th  of  June,  1867.  He  died  in  1876,  and  the  defendant 
Nathaniel  Townsend  was  appointed  by  the  orphans  court  of 
that  county,  in  that  year,  administrator  cum  testamento  annexo, 
and  trustee  in  his  place.  He  was  required  to  give  bonds  in  the 
sum  of  $62,000,  which  he  gave  accordingly.  The  debts  have 
all  been  paid,  and  all  the  duties  to  be  discharged  by  Townsend 
in  regard  to  the  estate  are  those  of  a  trustee. 

The  complainant  insists  that  the  will  gave  Canfield  only  a  mere 
power,  and  that  the  power,  being  a  discretionary  one,  expired  with 
him  ;  and  that  the  residue  of  the  estate  is  therefore  immediately 
divisible  among  the  next  of  kin  of  the  testator.  But  it  is  clear 
that  Canfield  was  clothed  with  more  than  a  mere  power.  He 
was  clothed  with  a  trust.  The  testator  declares  that  he  })laces 
the  residue  of  his  estate  in  trust  in  the  hands  of  his  executor  and 
trustee,  and  he  subsequently  speaks  of  the  provision  as  the  trust 
which,  by  the  will,  he  has  created.     He  authorizes  the  trustee  to 

Davis  V.  Christian,  15  Gratt.  11,  a  testator  conferring  a  power  to  sell  lands 
in  order  to  carry  on  a  partnership,  gives  therewith  a  power  which,  although 
discretionary,  survives. 

Favlker  v.  Davis,  18  Gratt.  651,  lands  were  conveyed  to  trustees  in  trust  for 
N.  and  his  wife,  and  the  survivor  of  them  for  life,  and  then  to  their  children, 
and  if  N.  should  think  it  expedient  to  sell  the  lots,  then  to  carry  out  the  sale 
and  invest  the  proceeds  on  the  same  trusts.  N.  dies,  and  the  court  may  exe- 
cute the  trust  to  sell. 

Chase  V.  Davis,  65  Me.  102,  "two-fifths  for  J.  C.  and  S.  C.  in  trust  for  S.  and 
his  wife,  and  if,  after  five  years  from  my  decease,  they  shall,  in  the  exercise 
of  their  best  judgment,  consider  it  for  the  best  interest  and  happiness  of  S. 
and  his  wife,  to  transfer  to  them  said  two-fiftlis,  they  are  hereby  authorized 
to  execute  such  transfer."  J.  C.  and  S.  C.  duly  qualified  as  executors  and 
trustees,  and  S.  C.  died. 

Wikon  v.  Pennock,  Z7  Pa.  St.  238,  "  If  he  [the  trustee]  shall  think  it  expe- 
dient, and  the  said  M.  shall  assent  thereto ;"  and  the  trustee  died. 


396  CASES  IN  CHANCERY.  [33  Eq. 

"Weiland  v.  Townsend. 

buy  and  sell  property  at  his  full  discretion,  aud  in  terms  gives 
him  full  power  to  divide  the  balance  of  the  estate  which  may 
remain  at  the  expiration  of  the  time  limited  for  the  duration  of 
the  trust,  among  the  tastator's  then  legal  representatives  and  their 
assigns  in  such  proportions  as  to  the  trustee  may  seem  just  and 
proper,  expressly  and  explicitly  empowering  him  to  make  the 
division  according  to  his  discretion  and  judgment.  The  title  to 
the  estate  was  by  the  will  vested  in  the  trustee.  Apart  from  the 
testator's  declaration  that  he  placed  the  estate  in  the  trustee's 
hands  in  trust,  denominating  and  characterizing  the  deposit  as  a 
trust  and  the  depositary  as  a  trustee,  it  was  necessary  for  the  ex- 
ecution of  the  ample  power,  and  the  exercise  of  the  wide  dis- 
cretion given  to  the  trustee  by  the  will,  that  he  should  have  the 
title.  The  distinction  between  a  naked  power  and  a  trust  baa 
been  said  to  be  generally  something  like  this :  that  a  naked 
power  is  a  mere  authority  over  any  subject  matter,  enabling  the 
donee  to  control  its  disposition  without  vesting  the  thing  itself,  or 
any  interest  in  it,  in  him  ;  a  trust,  on  the  other  hand,  is  where  the 
thing  or  an  interest  in  it  is  vested  in  the  donee,  upon  the  confi- 
dence that  he  will  make  a  certain  disposition  of  it.  Withers  v. 
Yeaden,  1  Rich.  Eq.  3^4-  The  discretionary  power  given  by 
the  will  to  the  trustee  was  coupled  with  a  trust  for  the  benefit 
of  the  testator's  family.  Such  a  power  this  court  will  itself  ex- 
ecute according  to  equity,  where  the  trustee  dies  before  executing 

Hinklln  v.  Hamilton,  3  Humph.  569,  a  successor  to  an  executor  who  failed  to 
apply  to  the  court  to  obtain  the  state's  consent  to  the  manumission  of  a  slave, 
may  be  appointed  after  such  executor's  death,  and  required  so  to  apply. 

Baillie  v.  Me  Worter,  56  Ga.  183,  on  the  appropriation  of  trust  funds  to 
satisfy  a  creditor  of  the  cestui  qtie  trust,  the  court  appointed  a  receiver,  the 
trustee  having  died. 

Mosby  v.  Moshy,  9  Graft.  584,  "  whenever  my  executors  think  best,  they 
shall  sell  my  land  in  B."     One  executor  died  and  one  had  been  removed. 

In  the  following  instances  the  courts  have  refused  to  interfere  : 

Hibbard  v.  Lambe,  Amb.  309,  "the  residue  to  be  disposed  of  in  charity  to 
such  persons,  and  in  such  manner  as  my  executors,  or  the  survivor  of  them, 
shall  think  fit."  Two  of  them  having  died,  and  a  third  being  very  infirm,  appli- 
cation was  made  to  the  court  to  have  other  trustees  added. 

Cole  V.  Wade,  16  Ves.  27,  "for  such  of  my  relation.s  and  kindred  as  they  [the 
executors],  in  their  discretion,  shall  think  proper."     Both  executors  died,  tho 


6  Stew.]  FEBRUARY  TERM,  1881.  397 

Weiland  v.  Townsend. 

it,  or  refuses  to  execute  it,  or  if,  from  any  circumstance,  the  exe- 
cution of  the  power  by  him  becomes  impracticable.  Perry  on 
Trusts  §  S4.9,  Such  a  trust  as  that  created  by  the  will — a  trust 
to  take  in  hand  and  manage  an  estate  at  the  trustee's  full  discre- 
tion, to  make  allowances  almost  entirely  at  his  discretion  to  the 
testator's  family,  and  at  the  termination  of  the  trust  to  divide  the 
estate  among  the  testator's  heirs  or  next  of  kin,  or  their  assigns, 
in  such  proportions  as  to  him  may  seem  just  and  proper,  acting 
in  the  matter  according  to  his  own  discretion — cannot,  for  obvious 
reasons,  be  delegated,  unless  the  creator  of  the  trust  himself  has 
so  provided.  Where  a  testator  gave  his  property  to  his  son  in 
trust  to  apply  the  income  to  the  use  of  himself  and  family,  and 
to  give  by  deed  or  will  all  beyond  what  he  should  so  apply,  unto 
all  or  any  child  or  children  of  his  own,  in  such  proportions  and 
in  such  manner  as  he  should  see  fit,  and  the  sou  died,  having 
devised  the  property  to  his  wife,  with  directions  to  his  executors 
to  act  under  the  will  of  his  father,  it  was  held  to  be  a  trust 
coupled  with  a  power  to  appoint  at  his  son's  discretion  among 
his  children;  that  the  power  could  not  be  delegated;  that  tlie 
son's  will  was  not  an  execution  of  the  power,  and  that  his  chil- 
dren took  equally  under  their  grandfather's  will.  Withers  v. 
Yeaden,  uhi  sup.  See  also  the  cases  cited  in  Perry  on  Trusts 
§  251.     And  it  is  laid  down  as  a  general  rule  that  where  a  power 

survivor  devising  his  interest  in  testator's  estate  to  B.  Neither  B,  nor  a  trus- 
tee designated  by  tlie  court,  could  execute  it. 

Down  V.  Wcrrrall,  1  Myl.  &  K.  561,  to  executors  "  to  apply  the  same  as  I  [tes- 
tator] shall  appoint,  and  in  default  of  appointment  as  to  any  part,  to  settle 
such  part  at  their  discretion,  either  for  pious  and  charitable  purposes,  or  other- 
wise, for  the  benefit  of  my  sister  and  her  children  ;"  not  executable  by  the 
representative  of  the  surviving  trustee. 

Newman  v.  Warner,  1  Sim.  (N.  S.)  457,  "  for  W.  and  C.  and  the  survivor  of 
them  and  the  executors  and  administrators  of  such  survivor,  at  the  request  and 
by  the  direction  of  A  and  E,"  to  preserve  contingent  remainders.  Afterwards 
C.  died  and  W.  was  resident  abroad. 

Robaon  v.  Flyght,  4  De  G.  J.  &  S.  608,  a  power  to  lease  lands,  vestei!  in  two 
trustees  and  their  survivor  and  his  representatives,  where  one  trustee  died  and 
the  other  disclaimed,  was  considered  as  not  cast  on  the  heir-at-law  of  the 
testator.    See  Oarfoot  v.  Garfoot,  2  Johns.  Ch.  21. 

Beloie  ■V.  WTiite,  2  Head  703,  to  three  trustees,  with  power  in  them  or  their 


398  CASES  IN  CHANCERY.  [33  Eq. 

Weiland  v.  Townsend. 

is  given  to  trustees,  the  exercise  of  which  is  arbitrary,  and  the 
settlement  contains  no  proviso  for  the  appointment  of  new  trus- 
tees with  similar  powers,  it  is  not  competent  for  the  court, 
on  the  substitution  of  new  trustees  by  its  own  inherent  jurisdic- 
tion, to  invest  such  trustees  with  that  arbitrary  power.  Leuin 
on  Trusts  J^d.  But  the  court  will  not  suffer  the  trust  to  fail 
for  want  of  a  trustee,  and  it  will  therefore  appoint  a  successor, 
substituting  equitable  rules  in  the  place  of  arbitrary  power.  In 
the  case  under  consideration  the  new  trustee  does  not,  according 
to  his  answer,  claim  the  right  to  exercise  the  arbitrary  power 
given  by  the  will  to  the  trustee  thereby  appointed.  He  declares 
that  the  only  control  he  has  ever  exercised  over  the  estate  has 
been  for  the  purpose  of  preserving  the  trust  funds  and  prop- 
erty, and  executing  the  trust  for  the  benefit  of  the  testator's  im- 
mediate family;  that  he  never  has  assumed  to  himself  the  dis- 
cretionary powers  granted  to  Canfield  by  the  will,  nor  has  he 
ever  assumed  to  exercise  the  same  control  over  the  property  of 
the  estate  which  came  into  his  hands  as  the  testator  could  (in  the 
language  of  the  will)  have  exercised  if  living,  nor  to  complete 
any  business  arrangement  entered  into  either  by  Canfield  or  the 
testator ;  and  he  adds  that  he  knows  of  no  business  engagements 
or  arrangements  to  be  carried  out.  He  further  says  that  he  has 
not  claimed,  and  does  not  claim,  the  right  to  buy  and  sell  prop- 
survivor,  to  sell  and  convey  any  part  or  all  of  the  property,  for  the  use  of 
testator's  daughter  and  her  children,  to  vest  and  revest  the  proceeds,  and  t» 
manage  the  whole  in  any  way  they  might  think  promotive  of  the  interests  of 
the  beneficiaries. 

Bailey  v.  Burges,  10  B.  I.  422,  "  to  B,  his  heirs  and  assigns,  upon  farther 
trust  from  time  to  time,  as  and  when  the  said  B  shall  deem  it  expedient  to  sell 
or  mortgage  the  whole  or  any  part  *  *  *  at  his  discretion."  B  was 
removed  by  the  court  from  the  trust,  on  his  own  application. 

Littleton  v.  Addington,  59  Mo.  275,  a  widow  and  another  were  empowered  to 
sell  lands  "  as  they  might  deem  best  for  the  interests  of  the  estate,  and  to  use 
the  proceeds  with  like  discretion."  The  widow,  after  ceasing  to  act  as  exeqji- 
trix,  has  no  power  to  sell. 

Riddle  V.  Cutler,  Ifi  Iowa  547,  interference  with  a  trust  was  refused,  where  a 
spendthrift  had  conveyed  his  property  to  a  temporary  trustee  until  a  perma- 
nent one  could  be  selected,  and  the  former  was  dead  and  the  latter  not  chosen. 

Such  power  cannot  be  exercised,  ordinarily,  by  an  administrator  turn  testa- 


6  Stew.]  FEBRUARY  TERM,  1881.  399 

Weiland  v.  Townsend. 

erty  on  account  of  the  estate,  nor  the  right  to  enter  into  new 
business  engagements,  except  under  the  advice  of  court.  He 
has,  he  admits,  made  allowances  to  the  members  of  the  imme- 
diate family  of  the  testator  (but  always,  as  he  alleges,  only  out 
of  the  income  of  the  estate,  and  having  regard  to  the  amount 
of  the  income  and  the  rank  and  condition  in  life  of  the  family), 
and  he  claims  the  right  to  make  such  allowances.  He  appears 
to  have  taken  the  advice  and  direction  of  the  Passaic  orphans 
court  in  reference  to  the  propriety  of  making  allowance  to  the 
complainant  and  John  F.  Wylie,  and  was  advised  by  that  court 
to  make  no  allowance  to  the  former,  but  to  make  one  to  the  lat- 
ter. The  amount  of  the  annual  allowance  to  be  made  to  the 
members  of  the  testator's  immediate  family  is,  by  the  will,  i^ub- 
ject  to  the  discretion  of  the  trustee,  with  proviso  that  the  allow- 
ance shall  be  at  least  sufficient  to  keep  the  recipients  thereof  from 
actual  want.  This  discretion  is  one  which  the  new  trustee  can- 
not exercise ;  but  the  amount  of  the  allowances  must  be  fixed 
by  this  court. 

The  testator  clearly  intended  that  the  trust  which  he  created 
by  his  will  should  last  for  twenty-one  years.  He  makes  no 
other  provision  for  his  widow  than  that  contained  in  the  trust — 
the  allowance  to  be  made  by  the  trustee  for  her  support,  and  the 

mento  annexo.  Brush  v.  Young,  4  Dutch.  237  ;  Moss  v.  Barclay,  18  Pa,  St.  179; 
Tainter  v.  Clark,  IS  Mete.  220  ;  Abell  v.  Howe,  43  Vt.  403  ;  Belcher  v.  Branch, 
11  B.  I.  226;  Knight  v.  Loomis,  30  Me.  204;  Atfy-Gen.  v.  Garrison,  101  Mass. 
223;  1  Wms.  on  Exrs.  654,  note  (lo^) ;  Dominic  v.  Michael,  4  Sandf.  374;  Fer- 
rebee  v.  Proctor,  2  Dev.  &  Bat.  439  ;  Armstrong  v.  Park,  9  Humph.  195 ;  Be»- 
ley's  Estate,  18  Wis.  451;  Wooldridge  v.  Watkins,  3  Bibb  349;  Tarver  v.  Haines, 
55  Ala.  503  ;  Muldrow  v.  Fox,  2  Dana  74;  Coleman  v.  McKinney,  3  J.  J.  Marsh, 
246;  Lockwood  v.  Stradley,  1  Del.  Ch.  298;  Oreenough  v.  Welles,  10  Oush, 
571. 

CJontba:  Brown  v.  Armistead,  6  Band.  694;  Mosby  v.  Mosby,  9  Oratt.  5S4; 
Hester  v.  Hester,  2  Ired.  Eq.  330;  Mathews  v.  Meek,  23  Ohio  St.  272;  Elstner 
V.  Fife,  32  Ohio  St.  358  ;  Bain  v.  Mattesm,  54  N.  Y.  663;  Evans  v.  Chew,  71 
Pa.  St.  47 ;  Harrison  v.  Hendersm,  7  Heisk.  315;  Anderson  v.  McOowan,  45 
Ala.  462;  S.  C,  4^  Ala.  280. 

N.  'Q.—Conklin  v.  Egerton,  21  Wend.  430  ;  25  Wend.  224,douhted  in  Elstner 
V.  Fife,  32  Ohio  St.  371;  Anderson's  Estate,  5  N.  Y.  Leg.  Obs.  305;  and  WUhera 
V.  Yeaden,  1  Rich.  Eg.  325,  qualified  in  Lines  v.  Dardev,  5  Fla.  79. 


400  CASES  IN  CHANCERY.  [33  Eq. 

Weiland  v.  Townsend, 

distribution  to  be  made  at  the  end  of  twenty-one  years  from  his 
death.     His  language  is  : 

"  I  further  order  and  direct  that  the  trust  vrhich  I  hereby  create  shall  cease 
and  determine  at  the  end  of  twenty-one  years,  when  the  balance  of  any  estate 
remaining  after  the  performance  of  the  above  conditions  shall  be  divided 
among  my  then  legal  representatives  and  afisigns." 

His  intention  was  that  the  estate  should  be  held  and  managed  by 
the  trustee  for  the  period  which  he  designates  as  the  duration  of  the 
trust ;  his  immediate  family  to  be  supported  out  of  it  in  the  mean- 
time, and  that  it  should  then  be  justly  aud  equitably  divided  among 
those  who  would  at  that  time,  by  law,  be  entitled  to  it,  either  as 
his  heirs  or  next  of  kin,  according  as  the  property  should  be 
real  or  personal ;  and  he  confided  the  division  to  the  trustee  be- 
cause the  latter,  from  his  administration  of  the  estate  in  the 
meantime,  making  the  allowances,  &c.,  would  be  able  to  make 
the  distribution  according  to  justice.  The  distribution,  now 
that  the  trustee  whom  he  appointed  is  dead,  must  be  made  bj 
this  court.  In  the  meantime,  and  until  the  time  for  distribu- 
tion arrives,  the  estate  will  be  managed  under  the  direction  of 

As  to  an  administrator  de  bonis  non,  see  Hull  v.  Hull,  24  N.  Y.  64-7  ;  Hep- 
bum's  Estate,  8  PhUa.  206  ;  Bell  v.  Humphrey,  8  W.  Va.  1 ;  Meredith's  Estate, 
1  Para.  4^8.  And  an  administrator  durante  minore  estate.  Monsell  v.  Anndrong, 
L.  R.  {14  Eq.)  4^S.  And  an  administrator  or  trustee  authorized  by  special 
act  of  the  legislature.  Corbell  v.  Zeluff,  12  Gratt.  226 ;  Tindal  v.  Drake,  60 
Ala.  170;  McComb  v.  Gilkey,  29  Miss.  146 ;  Lothrop  v.  Stedman,  4^  Conn.  583. 

The  court  of  chancery  may  appoint  a  trustee  where  such  power  is  conferred 
by  testator  on  either  one  of  two  other  courts,  and  they  neglect  to  exercise  it. 
GTiffi.th  V.  State,  2  Del.  Ch.  4^1. 

Whether  the  survivor  of  two  or  more  trustees  can  exercise  a  discretionary 
power  of  sale  given  to  all,  see  Clinej'eller  y.  Ayres,  16  III.  329;  Barllett  v. 
Sutherland,  24  Miss.  395  ;  Mallet  v.  Smith,  6  Rich.  Eg.  12 ;  Clark  v.  HomthaU 
47  Miss.  434;  Evans  v.  Chew,  71  Pa.  St.  47  ;  Phillips  v.  Stewart,  59  Mo.  491; 
Parker  v.  Sears,  117  Mass.  513;  Davis  v.  Christian,  15  Qratt.  11 ;  Hamilton  v. 
Love,  2  Keir  243 ;  Marks  v.  Tarver,  59  Ala.  335 ;  Saunders  v.  Schmaelzle,  4^ 
Oal.  59;  Niles  v.  Stevens,  4  Denio  399;  Taylor  v.  Morris,  1  N.  T.  341;  Chaxet 
X.  Villeponteaux,  3  McCord  19  ;  Miller  v.  Meetch,  8  Pa.  St.  417  ;  Bell  v.  Humphrey 
8  W.  Va.  1.    Or  the  executor  of  an  executor,  Chambers  v.  Tulane,  1  Stock.  146. 

See,  further,  8  Am.  Law  Rev.  669  ;  2  Wms.  on  Exrs.  951}  £  White  &  Tud. 
Lead.  Cos.  in  Eq.  1833.— Rep. 


6  Stew.]  FEBRUARY  TERM,  1881.  401 

Thompson  v.  Thorp. 

this  court.  There  will  be  a  reference  to  a  master  as  to  the 
amount  and  character  of  the  estate ;  in  what  investment  it  stands 
and  the  character  of  those  investments  ;  what  is  the  annual  in- 
come derived  therefrom,  and  in  what  payments  it  is  received ; 
the  fitness  of  the  present  trustee,  and  whether  he  should  give 
new  bonds,  and  if  so,  to  what  amount,  if  he  be  favorably  re- 
ported upon ;  and  who  now  constitute  the  testator's  immediate 
family,  and  what  allowance  ought  to  be  made  to  each  one  for  his 
or  her  support. 


Bei'hiah  Thompson 

V. 

Nathan  H.  Thorp  et  al. 


Under  the  charter  of  the  city  of  Eahway,  adopted  in  1865,  the  lien  of  the 
city  for  ordinary  municipal  taxes  and  for  assessments  for  street  improvements, 
is  prior  to  a  bona  fide  mortgage  on  the  premises  made  and  registered  before 
the  levy  or  assessment. 


Bill  to  foreclose.  Question  submitted  on  briefs.  On  stipula- 
tion of  counsel  as  to  facts. 

Messrs.  Shafe)'  <&  Durand,  for  complainant. 

Mr.  L.  Lupton,  for  city  of  Rah  way. 

The  Chancellor. 

By  a  stipulation  made  by  the  respective  counsel  of  the  com- 
plainant and  the  city  of  Rahway,  it  is  agreed  that  the  whole  of 
the  principal  of  the  complainant's  mortgage  is  due,  with  large 
arrears  of  interest ;  that  the  mortgaged  premises  are  the  same  on 
which  the  taxes  and  the  assessment  for  benefits  for  the  widening 
of  Main  street  in  Rahway,  also  mentioned  in  the  pleadings,  were 

26 


402  CASES  IN  CHANCERY.  [33  Eq. 

Thompson  v.  Thorp. 

assessed ;  that  tliat  assessineut  and  the  taxes  were  assessed  after 
the  complainant's  mortgage  was  recorded ;  that  the  taxes  were 
assessed  against  the  mortgagor,  as  owner  of  the  property  j  that 
the  property  is  the  same  which  was  sold  for  non-payment  of  the 
taxes  of  1876;  that  no  notice  was  given  to  the  complainant  by 
the  city  of  the  non-payment  of  the  taxes ;  that  the  assessments, 
as  well  that  for  widening  as  those  for  taxes,  were  duly  and 
legally  made,  and  that  the  sale  of  the  property  for  taxes  was 
also  legally  made,  and  that  the  assessment  still  remains  unpaid. 
The  question  presented  for  decision  is,  whether,  under   the 
charter  of  the  city  of  Kahway,  taxes  (which  were  the  usual  ones 
for  city,  county  and    state   purposes),  and   the  assessment  for 
widening  Main  street,  all  of  which  were  assessed  on  the  property 
subsequently  to  the  date  and  recording  of  the  complainant's 
mortgage,  are  liens  prior  to  that  of  the  mortgage.     The  mort- 
gage was  made  and  registered  in  May,  1870.     The  taxes  in 
question  were  assessed  for  the  years  1876  and  1877,  and  the 
assessment  for  widening,  in  September,  1870.     By  the  charter, 
which  was  passed  in  1865  (P.  L.  of  1865  p.  4^9  §  57),  it  is 
provided  that  all  taxes  and  assessments  which  shall  be  assessed 
or  made  upon  any  lands  or  real  estate  in  the  city,  shall  be  and 
remain  a  lien  thereon  until  paid,  for  the  amount  of  such  taxes  or 
assessments,  with  interest  thereon  at  the  rate  of  twelve  per  cent, 
per, annum,  and  all  costs  and  fees;  and  that  such  lien  shall 
remain  upon  such  lands  and  real  estate,  notwithstanding  any 
devise,   descent,    alienation,    mortgage    or   other    encumbrance 
thereof,  and  notwithstanding  any  mistake  in  the  name  of  the 
owner  or  owners,  or  omission  to  name  the  owner  or  owners  of 
such  lands  and  real  estate;  and  that  any  assessment  of  taxes,  in 
which  such  mistake  or  omission  occurs,  shall  be  valid  and  effec- 
tual in  law,  and  if  unpaid  shall  be  returned  in  the  list  of  delin- 
quent taxes ;  and  such  lands  and  real  estate  shall  be  proceeded 
against,  and  sold  in  the  manner  provided  by  the  act.     By  a  sup- 
plement to  the  charter  (P.  L.  of  187 J/,  p.  ^75),  it  is  provided  that 
the  lien  of  taxes  shall  begin  from  and  after  the  day  on  which  the 
taxes  are  declared  to  be  due  and  payable,  which  is  fixed  by  the 
charter  as  on  the  15th  of  October.     Though  the  taxes  in  question 


6  Stew.]  FEBRUARY  TERM,  1881.  403 

Thompson  v.  Thorp. 

were  uot  assessed  until  afler  the  registering  of  the  mortgage,  yet 
under  the  provision  of  the  57th  section  of  the  charter,  the  lien 
of  the  former,  though  subsequent  in  date,  is  paramount  to  that 
of  the  mortgage.  Trtbstees  of  Public  Schools  v.  City  of  Trenton^ 
3  Stew.  Eq.  667,  674-,  675.  In  that  case  the  charter  declared  that 
the  tax  should  be  a  lien  for  two  years  from  the  date  of  the  tax 
warrant,  notwithsttmding  any  devise,  &c.,  and  it  also  contained 
the  provision  that  the  certificate  of  sale  should  constitute  a  lien 
on  the  premises  sold,  after  it  should  have  been  recorded.  The 
same  provision,  that  the  certificate  of  sale  shall  constitute  a  lien 
on  the  premises  sold,  after  it  shall  have  been  recorded,  is  found 
in  the  charter  of  Rahway,  and  it  is,  in  the  brief  of  the  complain- 
ant's counsel  in  this  case,  stated  to  be  the  only  provision  making 
taxes  a  lien  on  real  estate  so  as  to  affect  the  rights  of  prior  mort- 
gagees. But  by  the  construction  which,  under  the  authority  of 
the  case  just  cited,  is  to  be  given  to  the  57th  section,  that  is  mani- 
festly an  error. 

The  charter,  by  the  83d  section,  makes  the  assessments  for 
benefits  in  opening  or  widening  streets  &c.,  a  lien  on  the  land  and 
real  estate  assessed,  from  the  time  when  the  improvements  shall 
have  been  made.  By  the  86th  section,  it  is  declared  that  every 
such  assessment  shall  be  payable  with  interest  thereon  from  the 
time  when  it  is  ratified  by  the  common  council  until  it  is  paid, 
and  that  the  interest  shall  be  deemed  and  held,  to  all  intents  and 
purposes,  to  be  a  part  of  the  assessment,  and,  as  such,  a  lien  upon 
the  lands  and  real  estate  in  respect  whereof  the  assessment  is 
made.  By  the  89th  section,  it  is  provided  that  the  common 
council  may  direct  the  city  treasurer  to  collect  the  assessments 
by  public  sale  at  auction,  of  the  lands  and  real  estate  whereon 
they  have  been  imposed  or  are  a  lien.  The  90th  section  requires 
the  treasurer  to  make  a  transcript  and  give  notice.  The  91st  sec- 
tion makes  it  his  duty  to  sell  and  deliver  a  certificate  of  sale,  and 
it  adds  that  all  further  proceedings  which  are  authorized  by  the 
act  in  respect  to  the  sale  and  redemption  of  lands  or  real  estate 
for  the  non-payment  of  taxes,  may  in  like  manner  be  had  in 
cases  of  sales  of  lands  or  real  estate  for  the  non-payment  of 
assessments,  where  such  assessments  are  made  a  lien  on  lands  and 


404  CASES  IN  CHANCERY.  [33  Eq. 

Thompson  v.  Tliorp. 

real  estate  by  the  provisions  of  the  act.  The  65th  section  pro- 
vides that  no  mortgagee  whose  mortgage  shall  have  been  duly 
recorded  before  sale  for  any  tax  or  assessment,  shall  be  divested 
of  his  rights  in  the  property  sold,  unless  six  months'  notice,  in 
writing,  of  such  sale,  shall  have  been  given  to  him  by  the  pur- 
chaser, or  by  any  person  or  persons  claiming  under  him  &c. 
The  next,  the  66th  section,  provides  that  the  owner,  mortgagee, 
occupant,  or  any  person  or  persons  having  a  legal  or  equitable 
interest  in  any  lands  and  real  estate  sold  for  taxes  or  for  any 
assessment  under  the  provisions  of  the  act,  may  redeem  in  two 
years  from  the  sale,  and  if  the  person  redeeming  be  a  judgment 
creditor  or  mortgagee,  he  shall  have  a  lien  on  the  property  for 
the  amount  paid  by  him,  with  interest  at  seven  per  cent,  per 
annum,  as  if  included  in  his  judgment  or  mortgage,  and  may 
enforce  payment  thereof  in  the  usual  manner.  By  the  67th 
section,  it  is  declared  that  if  there  be  no  redemption  within  tJie 
time  limited,  a  declaration  of  sale  shall  be  given,  by  virtue  of 
which  the  purchaser  or  purchasers,  and  his  and  their  legal  repre- 
sentatives, shall  lawfully  hold  and  enjoy  the  lands  and  real 
estate  sold,  with  the  rents,  issues  and  profits  thereof,  for  his  and 
their  own  proper  use,  against  the  owner  or  owners  thereof,  and 
all  persons  claiming  under  him  or  them,  until  the  term  for  which 
the  purchaser  may  have  agreed  to  take  the  property  shall  be 
ended.  It  will  have  been  seen  that  the  provision  of  the  57th 
section  of  the  charter,  giving  priority  of  lien,  applies,  by  its 
express  terms,  to  assessments  for  benefits,  as  well  as  to  taxes.  It 
is  clear  that  that  provision  is,  on  the  authority  of  the  case  before 
cited,  conclusive  on  the  question  submitted,  both  as  to  the  taxes 
and  the  assessments  for  widening.  In  City  of  Paterson  v.  O'Neil, 
5  Stew.  Eq.  386,  the  provision  for  redemption  by  the  mortgagee 
&c.,  was  regarded  as  an  important  element  in  determining  whether 
the  charter  of  the  city  disclosed  an  intention  on  the  part  of  the 
legislature  to  postpone  the  lien  of  a  mortgage  to  the  lien  of  taxes 
subsequently  assessed.  That  charter  contained  no  provision  for 
priority,  such  as  that  contained  in  the  57th  section  of  the  charter 
under  consideration ;  nor  did  it  provide  that  notice  to  the  mort- 
gagee should  be  necessary  before  his  title  could  be  divested.    But 


6  Stew.]  FEBHUARY  TERM,  1881.  405 

Bentley  v.  Heinlze. 

the  court  considered  the  fact  that  there  was  a  provision  that  the 
land  should  be  assessed  for  its  full  and  fair  value,  and  that  mort- 
gages on  the  land  should  not  be  taxed  in  the  hands  of  any  person 
in  this  state,  and  a  provision  that  the  assessment  should  be  valid 
notwithstanding  any  error  or  omission  in  naming  the  owner,  and 
the  provision  for  redemption,  evincive  of  an  intention  on  the 
part  of  the  legislature  to  make  the  lien  of  the  tax  paramount  to 
that  of  the  mortgage.  The  intention  of  the  legislature  in  the 
case  in  hand,  to  put  municipal  assessments  for  benefits  on  the 
same  footing  as  to  liens  as  taxes,  is  manifest,  and  the  necessity  of 
doing  so  as  a  matter  of  policy  is  obvious. 

The  city  is  entitled  to  priority  for  the  taxes  and  assessment 


Ransom  Bentley 

V. 

Ferdinand  Heintze  et  al. 

A  judgment  creditor  may  set  aside  a  sheriflf's  sale  of  mortgaged  premises 
when  the  mortgage  was  fraudulently  given  by  the  judgment  debtor  to  protect 
his  property,  for  an  amount  greater  than  he  owed,  and  the  creditor  was  deterred 
from  bidding  at  the  sale,  which  was  under  prior  judgments,  by  the  fact  that  the 
amount  of  the  fraudulent  mortgage,  with  those  judgments,  amounted  to  more 
than  the  value  of  the  premises. 


Creditor's  bill.     On  final  hearing  on  pleadings  and  proofs. 

Mr.  C.  H.  Hartshorne,  for  complainant. 

Mr.  C  L.  Corhin,  for  Mr.  Wanner. 

Mr.  E.  D.  Deacon,  for  Heintze. 

The  Chancellor. 

The  bill  is  filed  by  Ransom  Bentley,  a  iudgment  creditor  of 


406  CASES  IN  CHANCERY.  [33  Eq. 


Bentlev  v.  Heintze. 


the  defendant  John  J.  Wanner,  to  reach,  for  the  satisfaction  of 
his  judgment,  certain  land  in  Jersey  City,  wjiich,  on  the  18th 
of  January,  1877,  was  owned  by  Wanner,  and  was  then  sold  by 
the  sheriff  of  Hudson  county  under  two  executions  against  goods 
and  lands.  One  of  the  executions  was  issued  on  a  judgment  in 
the  supreme  court  recovered  July  8tli,  1876,  by  Aaron  Hirsch 
and  others  against  Wanner,  for  $316.29;  the  other,  on  a  judg- 
ment recovered  in  tlie  Hudson  circuit  court,  September  12th, 
1876,  by  Nicholas  B.  Cushing  against  Wanner,  for  $448.51. 
The  complainant's  judgment  was  recovered  against  Wanner  in 
the  supreme  court,  September  9th,  1876,  for  §6,000  (penalty; 
real  debt,  $3,187.25).  A  writ  of  fieri  facias  de  bonis  d  terris 
was  issued  thereon  on  the  14th  of  that  month,  and  levied 
on  the  property  the  next  day.  The  levies  under  both  the  other 
judgments  were  prior  to  that  of  the  complainant.  When  the 
sale  was  made  there  was  on  the  property  a  mortgage  given  by 
Wanner  and  his  wife  to  the  defendant  Heintze,  August  18th, 
1876,  and  recorded  on  the  21st  of  that  month,  purporting 
to  have  been  given  to  secure  the  payment  of  $7,000  in  five 
years,  with  interest  half-yearly.  The  property  was  struck  off 
and  sold  at  the  sheriff's  sale  to  Solomon  Childs,  one  of  the  plain- 
tiffs in  the  Hirsch  judgment,  for  $550,  and  he,  pursuant  to  an 
understanding  had  at  the  sale  between  him  and  Heintze,  trans- 
ferred his  bid  to  the  latter,  who  paid  the  money  and  took  the 
sheriff's  deed  for  the  property  to  himself  accordingly.  After 
payment  of  the  Hirsch  judgment,  there  was  left  a  balance  of 
$174.23,  M'hich  Heintze  obtained  on  account  of  his  mortgage, 
on  application  to  the  supreme  court;  his  mortgage  being  subse- 
quent in  date  to  the  Hirsch  judgment,  but  prior  in  date  and 
registry  to  the  other  judgments. 

The  complainant  did  not,  in  person  or  by  attorney,  attend  the 
sale.  His  attorney  testifies  that  he  intended  to  attend  and  bid 
upon  the  property  for  the  complainant,  but  abandoned  the  inten- 
tion on  learning,  from  a  search  of  the  records,  of  the  existence 
of  Heintze's  mortgage,  the  amount  of  which,  and  tlie  Hirsch 
and  Cushing  judgments,  was  more  than  the  value  of  the  prop- 
erty.    Heintze  subsequently,  by  deed  of  August  23d,  1879,  con- 


6  Stew.]  FEBRUARY  TERM,  1881.  407 

Bentley  v.  Heintze. 

veyed  the  property  to  "Wanuer's  wife,  subject  to  the  payment  of 
taxes  assessed  after  the  year  1876,  aud  water  rents  which  became 
due  before  1875. 

The  consideration  of  that  deed  was  $4,000,  no  part  of  which 
was  paid,  but  it  was  secured  by  a  mortgage  from  Mrs.  Wanner 
and  her  husband  to  Heintze  on  the  property  for  that  sum,  pay- 
able in  three  years,  with  interest.  At  the  time  of  the  delivery 
of  these  papers,  a  lease  of  the  property  was  given  to  Heintze  for 
three  years,  at  a  rent  of  $800  a  year,  payable  monthly  in  advance. 
The  consideration  of  the  deed  was  made  up  of  the  money  which 
was  due  to  Heintze  from  Wanner  when  the  first-mentioned  mort- 
gage was  made,  and  the  payment  of  which  that  mortgage  was 
given  to  secure ;  the  money  paid  for  the  property  at  the  siieriff's 
sale,  taxes  and  insurance  premium  paid  on  the  property  by 
Heintze ;  money  paid  by  Heintze  for,  or  on  account  of,  repairs 
to  the  premises,  and  the  amount  of  a  judgment  recovered  against 
Wanner,  in  the  Hudson  circuit  court,  by  William  M.  Fleiss  and 
Benjamin  W.  Allen,  May  26th,  1877,  for  $797.09  (subsequent 
to  the  before-mentioned  judgment,  all  of  which  were  recovered 
in  1876),  which  Heintze  had  purchased  (at  fifty  cents  on  the 
dollar)  at  Wanner's  request,  and  of  which  he  held  an  assignment, 
and  interest  on  all  those  moneys,  besides  expenses  of  searches, 
conveyancing,  &c.  When  the  mortgage  of  $7,000  was  given, 
there  was  due  to  Heintze  from  Wanner  only  the  sum  of  $502.21, 
for  so  much  money  paid  by  Heintze,  March  25th,  1876,  to  take 
up  a  note  given  by  Wanner  to  David  Ettling,  and  endorsed  by 
Heintze,  and  protested  for  non-payment,  and  $750  lent  by 
Heintze  to  Wanner,  August  1st,  1876,  together  about  $1,250, 
besides  some  interest  thereon.  How  it  came  that  a  mortgage  for 
$7,000  was  given,  Heintze  explains  as  follows  :  He  says  that  a 
short  time  before  the  mortgage  was  given.  Wanner  applied  to 
him  to  lend  him  more  money,  and  he  refused  to  do  so  until  after 
he  should  have  been  secured  for  the  money  he  had  already  lent 
him  (he  says  Wanner  was  then  getting  worse  financially  every 
year),  and  Wanner  told  him  he  would  secure  him  by  giving  him 
a  mortgage  on  the  house  for  $7,000,  and  asked  him  if  that  would 
satisfy  him,  and  Heintze  replied  that  it  would.     Wanner  subse- 


408  CASES  IN  CHANCERY.  [33  Eq. 

Bentley  v.  Heintze. 

quently  got  the  mortgage  drawn,  and  he  and  his  wife  executed 
it,  and  Wanner  brought  and  deliv^ered  it  to  Heintze.  Wanner, 
according  to  Heintze,  gave  him  a  chattel  mortgage  also  for  the 
same  debt,  at  or  about  the  same  time,  but,  according  to  Wanner, 
the  chattel  mortgage  was  given  previously,  to  secure  the  loan  of 
$750.  It  appears  to  have  been  a  subsisting  and  valid  security 
for  the  money.  When  the  real  estate  mortgage  was  given,  it  was 
understood  between  them  that  Heintze  was  not  to  renew  the 
chattel  mortgage  at  the  end  of  the  year.  They  say  it  was  under- 
stood that  on  the  credit  of  the  mortgage  of  the  house  and  land 
Heintze  was  to  lend  Wanner  the  money  to  pay  debts  (some  of 
which  were  pressing)  for  repairs  which  had  been  done  to  the 
house  (Heintze  occupied  it  for  a  restaurant  and  saloon,  as  tenant 
of  Wanner)  and  taxes  on  the  property,  and  to  secure  to  Heintze 
payment  for  repairs  which  he  might  make  (and  which  Wanner 
expected  him  to  make),  and  advances  of  money  to  Wanner  from 
time  to  time.  He  seems,  however,  to  have  advanced  very  little, 
if  any,  and  up  to  the  time  of  the  sheriff's  sale,  had  advanced 
none.  The  property  was  sold  the  following  January.  Heintze 
states  that  he  was  not  aware  of  the  fact  that  it  was  advertised  to 
be  sold  until  the  day  of  the  last  adjournment,  when,  he  says,  he 
was  informed  by  the  sheriff  that  the  sale  had  been  adjourned  for 
a  week.  He  attended  the  sale.  Wanner  and  his  counsel  were 
there,  and  so  was  Mr.  Childs,  the  judgment  creditor  before  men- 
tioned. Before  the  property  was  put  up  for  sale,  Heintze  agreed 
with  Wanner's  counsel  (to  use  Heintze's  own  language),  that  he 
would  buy  the  property  himself  at  the  sale,  or  get  it  of  whomso- 
ever should  buy  it,  and  sell  it  to  Wanner's  wife.  Heintze  bid 
$500,  and  Mr.  Childs  $550,  and  the  property  was  knocked  down 
to  the  latter.  There  was  an  understanding,  however,  between 
Childs  (who  Heintze  says  was  a  friend  of  his)  and  Heintze  that 
the  latter  was  to  have  it,  and  therefore  Heintze  did  not  bid  above 
Childs's  bid  of  $550. 

All  the  testimony  on  the  subject  tends  directly  to  the  conclu- 
sion that  the  property  was  bought  in  by  Heintze  for  Wanner. 
Heintze  says  that  Wanner  wanted  him  to  buy  the  property,  and 


6  Stew.]  FEBRUARY  TERM,  1881.  409 

Bentley  v.  Heintze. 

suggested  to  him  that  he  should  buy  it  and  sell  it  to  Wanner's 
wife,  because  he.  Wanner,  could  not  hold  it  himself. 

As  before  stated,  the  supreme  court,  on  application  of  Heintze, 
ordered  that  the  surplus  money,  after  paying  the  Hirsch  judg- 
ment, should  be  paid  over  to  Heintze  on  his  mortgage.  He  did 
not,  in  fact,  receive  it,  but  it  was  paid  over  to  Wanner  by  Heintze's 
direction.  Mr.  Collins,  who  was  acting  for  Wanner,  and  also  for 
Heintze,  in  obtaining  the  surplus  money,  says,  on  that  subject, 
that  he  understood  that  Wanner  was  in  want  of  money,  and 
begged  Heintze  to  let  him  have  it,  and  Heintze  did  so.  Not- 
withstanding their  denial,  the  evidence  leads  to  the  conviction 
that  the  $7,000  mortgage  was  intended  by  both  Heintze  and 
Wanner  to  cover  up  the  property  from  the  creditors  of  the  latter. 
Heintze  says  he  knew  that  Wanner  was  laboring  under  pecuniary 
embarrassment ;  and  he  also  says  that  he  was  a  friend  of  his,  and 
he  wanted  to  see  him  get  along.  For  the  $750  Heintze  had,  as 
before  mentioned,  security  in  a  chattel  mortgage,  and  it  is  not 
pretended  that  it  was  not  adequate.  Heintze's  statement  as  to 
how  it  happened  that  the  $7,000  mortgage  was  made  for  so  much, 
when  the  actual  debt  was  only  about  $1,300,  has  already  been 
given.     Wanner's  is  as  follows :  To  the  question, 

"  If  you  gave  him  a  chattel  mortgage  on  your  goods  for  $750,  why  did  you 
include  that  $750  in  your  $7,000  mortgage?" 

he  answers : 

"That  is  right,  that  is  included  in  the  $7,000  mortgage;  T  gave  him  the 
$7,000  mortgage ;  he  would  not  lend  me  any  more  money,  and  then  I  gave  him 
the  $7,000  mortgage  to  make  all  his  claim  good,  and  if  I  got  in  want  or  trouble, 
he  would  help  me  with  more  money ;  on  that  ground  I  gave  it  to  him ;  he 
waa  the  only  friend  to  help  me  when  I  was  moneyless,  and  that  is  the  reason 
I  gave  him  that  mortgage,  to  secure  him  and  to  make  sure  that  he  would  get 
his  money  back." 

When  asked  how  he  came  to  give  Heintze  a  mortgage  for  so 
much,  he  answers  that  Heintze  desired  to  have  the  mortgage  for 
a  larger  sum  than  he  owed  him,  so  as  to  make  him  secure.  In 
the  beginning  of  August,  1876,  the  firm  of  William  M.  Fleiss 


410  CASES  IN  CHANCERY.  [33  Eq. 

Bentley  v.  Heintze. 

&  Co.,  of  New  York,  sold  goods  to  Wanner  on  credit.  To 
obtain  the  credit,  Wanner  stated  to  Mr.  Fleiss,  in  substance,  that 
he  owned  real  estate  in  Hudson  county  of  the  value  of  about 
$50,000,  and  alleged  that  it  was  unencumbered.  About  a  month 
afterwards,  Mr.  Fleiss  having  learned  that  he  had  given  the  two 
mortgages,  the  chattel  mortgage  and  the  $7,000  mortgage  (but 
Fleiss  then  understood  that  the  latter  was  for  only  $1,700),  sent 
for  him  and  asked  an  explanation.  Wanner  then  told  him  that 
his  object  in  giving  the  mortgages  was  to  protect  himself  against 
some  suits  which  had  been  (or  might  be)  brought  against  him  as 
endorser,  in  case  judgment  should  be  recovered  against  him;  and 
he  gave  as  his  excuse  for  his  action  that  he  did  not  feel  bound 
to  pay  the  money  for  the  recovery  whereof  the  suits  were  brought. 
Mr.  Fleiss  having  ascertained  from  the  record  that  the  real  estate 
mortgage  was  for  $7,000,  instead  of  $1,700,  spoke  to  Heintze  on 
the  subject,  and  asked  him  about  the  mortgage ;  btit  Heintze 
■would  say  nothing  more  than  he  had  given  value  for  it.  Again, 
at  the  sheriff's  sale,  nothing  whatever 'was  said  in  regard  to  the 
mortgage ;  no  mention  was  made  of  it  nor  any  reference  to  it. 
Indeed,  it  appears  that  Mr.  Collins,  Wanner's  counsel,  did  not 
know  of  its  existence  until  his  firm  was  employed  by  Heintze  to 
obtain  the  surplus  money.  Heintze  admits  that  he  has  paid  rent 
ever  since  the  sheriff's  sale.  It  appears  that  he  has  paid  it  to 
Wanner.  It  is  receipted  for  by  Wanner  in  his  own  name  alone 
U|)  to  September,  1879  (the  bill  was  filed  in  January  following), 
and  since  that  he  appears  to  have  receipted  for  it  in  the  names 
of  both  his  wife  and  himself. 

It  appears  by  the  evidence  that  the  size  and  character  of  the 
mortgage,  the  fact  that  it  was  a  mortgage  purporting  to  secure 
not  past  debts  and  future  advances,  but  a  debt  of  $7,000  and 
interest,  prevented  the  complainant's  attorney  from  bidding  on 
the  property  for  his  client,  at  the  sheriff's  sale,  by  inducing  him 
to  believe  that  it  was  useless  to  attend  the  sale  at  all.  After  the 
Hirsch  judgment,  came,  according  to  the  records,  the  mortgage 
for  $7,000.  Next  came  the  Cushing  judgment,  and  then  the 
complainant's.  The  complainant's  attorney  swears  that  his  sole 
reason  for  not  attending  the  sale  was,  that  he  knew  the  encum- 


6  Stew.]  FEBRUAEY  TERM,  1881.  411 

Bentley  v.  Heintze. 

brance  of  the  Heintze  mortgage  was  more  than  the  value  of  the 
property.  He  valued  the  premises  at  between  $6,000  and 
$7,000.  He  further  says  that  had  it  not  been  for  that  mortgage, 
he  would  have  bid  enough  to  have  secured  at  least  a  part  of  his 
client's  debt.  There  were  due  on  the  Hirsch  judgment, 
$375.77 ;  on  the  $7,000  mortgage,  only  about  $1,300,  and  on 
the  Gushing  judgment  about  $460,  altogether  about  $2,135;  and 
these  were  all  the  encumbrances  ahead  of  the  complainant's  judg- 
ment. The  apparent  amount,  however,  owing  to  the  delusive 
character  of  the  complainant's  mortgage,  was  about  $7,800.  It 
is  urged  that  there  was  a  cloud  upon  the  title  at  the  time,  which 
was  subsequently  removed ;  but  it  is  very  evident  that  it  did  not, 
in  fact,  affect  the  price  of  the  property  at  the  sheriff's  sale;  and, 
besides,  the  property,  which  brought  only  $550,  rented  then  for 
$800  a  year,  and  has  rented  for  that  sum  ever  since.  After 
Heintze  purchased  the  property,  he,  at  the  request  of  Wanner, 
bought  the  Fleiss  judgment.  He  paid  for  it,  as  before  stated, 
only  fifty  cents  on  the  dollar,  but  he  insisted  on  receiving  secu- 
rity by  the  $4,000  mortgage,  for  the  whole  amount  due  on  the 
judgment.  Thus,  it  may  be  remarked,  if  the  transaction  under 
consideration  is  allowed  to  stand,  the  Fleiss  judgment  is  paid  by 
Wanner  out  of  the  property  by  means  of  the  shift  of  the  title, 
to  the  exclusion  of  the  Gushing  judgment  and  that  of  the  com- 
plainant, both  of  which  are  older,  and  under  both  of  which  the 
property  was  levied  upon  in  1876,  while  the  Fleiss  judgment  was 
not  recovered  until  1877,  after  the  sheriff's  sale.  The  Fleiss 
suit  was  commenced  by  capias  ad  respondendum  ordered  on  proof 
of  fraud  in  the  contracting  of  the  debt.  It  appears  that  the 
complainant's  attorney  did  not  learn  of  the  conveyance  from 
Heintze  to  Wanner's  wife,  until  a  short  time  before  the  bill  was 
filed.  The  cpmplainant  resides  in  Saratoga  county.  New  York. 
The  sheriff's  sale  and  the  deeds  to  Heintze  and  Mrs.  Wanner, 
and  the  mortgage  for  $4,000,  will  all  be  set  aside.  There  will 
be  an  account  to  ascertain  the  amount  justly  due  to  Heintze  on 
the  $7,000  mortgage  at  the  time  of  the  sheriff's  sale,  with  interest 
thereon  since  that  time,  and  also  the  rest  of  the  amount  due 
him  under  his  mortgage,  as  between  him  and  Wanner,  and  of  the 


412  CASES  IN  CHANCERY.  [33  Eq. 

Bohde  r.  Lawless. 

amount  due  on  the  Hirsch  judgment  (including  execution  fees), 
with  interest  from  the  same  period.  Also  the  amount  due  on  the 
Cushing  judgment  and  the  complainant's  judgment,  with  interest 
from  the  same  time.  The  property  will  be  resold,  and  out  of 
the  net  proceeds  of  the  sale,  the  costs  of  this  suit  will  first  be 
paid.  Heintze  will  then  be  paid  the  amount  found  due  in  the 
account  on  the  Hirsch  judgment,  and  the  amount  due  on  his 
mortgage  at  the  time  of  the  sheriff's  sale,  with  interest  on  both ; 
thirdly,  the  Cushing  judgment  will  be  paid;  fourthly,  the  com- 
plainant's judgment ;  fifthly,-  the  amount  which,  as  between 
Heintze  and  Wanner,  but  not  as  between  Heintze  and  the  com- 
plainant and  Cushing,  remains  due  the  former  under  the  mort- 
gage ;  aud  if  there  be  any  surplus,  it  is  to  be  paid  to  Mrs.  Wan- 
ner. 


Fbederick  Bohde  et  al.,  executors, 

V. 

Pateick  Lawless  et  al. 

It  is  no  objection  to  a  petitioner's  right  to  set  aside  a  voluntary  conveyance 
of  lands,  made  to  defeat  a  personal  decree  for  deficiency  on  a  foreclosure,  that 
at  such  foreclosure  sale  the  mortgaged  premises  were  bought  by  the  petitioner 
(the  mortgagee)  at  much  less  than  their  actual  value,  where  no  fraudulent  or 
inequitable  couduct  on  the  petitioner's  part  is  shown. 


Creditor's  bill.     On  final  hearing  on  pleadings  and  proofs. 

Mr.  J.  C.  Besson,  for  complainants. 

Mr.  J.  Chapman,  for  Margaret  Lawless. 

The  Chancellob. 

The  defendant  Patrick  Lawless,  in  1873,  gave  his  bond  of 
that  date,  to  Peter  Lawless,  conditioned  for  the  payment  of 


6  Stew.]  FEBRUARY  TERM,  1881.  413 

Bohde  V.  Lawless. 

$5,000  in  five  years,  with  interest.  The  payment  of  it  was 
secured  by  a  mortgage,  on  real  estate  in  Hoboken,  given  by 
Patrick  and  his  wife  to  Peter.  In  1874,  Peter  assigned  the 
bond  and  mortgage  to  the  complainants,  executors  of  Clans 
Dorcher,  deceased.  They  obtained  a  decree  of  this  court  for 
foreclosure  and  sale  upon  the  mortgage,  May  24th,  1879,  with  a 
personal  decree  for  deficiency  against  Patrick  Lawless.  The 
mortgaged  premises  were  sold,  under  the  execution  issued  on  the 
decree,  to  the  complainants  for  $500,  leaving  a  deficiency  of 
over  $5,000.  By  an  order  of  this  court,  a  writ  of  fieri  facias  de 
bonis  et  terris  was  issued  against  Patrick  Lawless  to  the  sheriff 
of  Hudson,  where  he  lived.  It  was  returned  nulla  bona  aut  tene- 
mental and  the  bill  in  this  cause  was  then  filed.  In  October, 
1879,  Patrick  Lawless,  by  his  deed,  conveyed  to  Yinceat  F. 
Flanagan  certain  other  land  in  Hoboken  which  he  then  owned, 
and  Flanagan,  on  the  same  day,  conveyed  the  property  to  Pat- 
rick's wife.  The  bill  is  filed  to  subject  that  property  to  the  pay- 
ment of  the  complainant's  debt,  the  deficiency  before  mentioned. 
It  asks  an  answer  without  oath. 

The  answer  gives  the  following  statement  of  the  consideration 
of  the  conveyance  to  Lawless's  wife  from  her  husband  through 
Flanagan : 

"  That  Patrick,  having  been  sick  for  a  number  of  years  and  unable  to  pro- 
vide for  the  family,  consisting  of  himself,  his  wife  and  five  children,  his  wife 
had  worked,  and  by  means  of  her  labor  and  from  moneys  borrowed  from  her 
friends,  had  been  able  to  accumulate  some  moneys,  which  she  had  giveu  to 
him,  and  that  this  property  was  conveyed  to  her  for  a  good  consideration,  in 
order  that  she  might  be  secured  to  herself  and  her  friends  for  the  moneys 
advanced,  and  that  a  home  might  be  retained  for  the  family." 

Lawless,  who  is  the  only  witness  sworn  on  the  subject,  says  that 
he  had  the  deeds  for  the  property  made  to  his  wife  and  the  title 
put  in  her  name  because  he  owed  her  money  which  she  had  fur- 
nished him  when  he  was  sick;  that  he  had  been  sick  during  a 
period  of  from  seven  to  nine  years,  and  during  the  time  of  his 
sickness  his  wife  provided  for  him,  and  did  all  she  could  for 
him ;  that  he  made  the  conveyance  (which  he  says  was  made  after 


414  CASES  IN  CHANCERY.  [33  Eq. 

Bohde  V.  Lawless. 

he  kaew  the  foreclosure  had  been  begun)  to  compensate  his  wife 
for  money  she  had  given  him  when  he  was  not  able  to  be  around ; 
that  his  wife  lent  him  money  from  time  to  time — $80  at  one 
time  and  $64  at  another;  that  the  latter  loan  was  made,  he 
thinks,  in  1879 ;  that  she  got  the  money  by  earning  it;  that  she 
used  to  take  care  of  her  brother's  property,  and  he  paid  her  for 
it;  that  he  has  no  memoranda  of  the  moneys  furnished  him  by 
her,  nor  did  he  ever  give  her  any  note ;  that  he  asked  her  for 
the  money  when  he  was  "  short,"  and  she  let  him  have  it ;  and 
that  the  $64  above  mentioned  were  the  last  he  got  from  her.  It 
is  quite  clear  that  the  conveyances  should  be  set  aside  as  against 
the  complainants'  debt.  See  Post  v.  Stiger,  2  Stew.  Eq.  544/ 
Clark  v.  Rosenkrans,  4-  Stew.  Eq.  665.  They  were  evidently 
voluntary,  and  are  therefore  not  valid  as  against  the  debt  which 
then  existed.  The  bill  avers  that  the  property  was  worth  about 
$2,000.  The  answer  is  silent  on  that  point,  and  there  is  no 
evidence  on  the  subject. 

On  the  hearing  it  was  insisted  that  the  fact  that  the  complain- 
ants were  the  purchasers  of  the  mortgaged  premises  at  the  sale 
under  the  foreclosure,  for  $500,  while  the  property  was  and  is 
worth  a  large  sum  beyond  that  amount  (perhaps  enough  to 
cover  the  entire  amount  of  the  deficiency),  is  of  itself  enough  to 
induce  this  court  to  refuse  to  aid  the  complainants  in  enforcing 
payment  of  the  deficiency.  But  it  is  quite  evident  that  that 
consideration  cannot  avail  the  defendants.  The  complainants 
are  before  the  court  seeking  payment  of  a  lawful  demand,  and 
they  have  been  guilty  of  no  fraudulent  or  inequitable  conduct  to 
debar  them  from  the  aid  of  equity.  There  will  be  a  decree  for 
the  complainants 


6  Stew.]  FEBRUARY  TERM,  1881.  415 

Lydecker  v.  Palisade  Land  Co. 


Maria  D.  Lydeckee 

V. 

The  Palisade  Land  Company  et  al. 

The  provision  of  the  act  of  1879  (P.  L.  of  1879  p.  S4O)  that  taxes  thereafter 
assessed  should  be  a  lien  on  the  premises  paramount  to  any  alienation  &a, 
thereof,  makes  such  lien  prior  to  that  of  a  mortgage  on  the  lands  given  before 
1879,  and  is  within  the  power  of  the  legislature. 


Bill  to  foreclose.     On  final  hearing. 

Mr.  R.  P.  Wortendyke,  for  complainant. 

Mr.  P.  W.  Stagg,  for  the  inhabitants  of  the  township  of  Pali- 


The  Chancellor. 

The  bill  is  filed  to  reform  and  foreclose  a  mortgage  on  land 
in  the  township  of  Palisades,  in  Bergen  county.  The  mortgage 
was  given  in  1872,  by  Jacob  S.  Wetmore  to  the  executors  of 
Samuel  R.  Demarest,  deceased,  by  whom  it  was  assigned  to  the 
complainant.  There  are  no  words  of  inheritance  in  it,  but  the 
estate  granted  is  to  the  executors,  "  their  survivors  or  survivor, 
or  their  or  his  successors  and  assigns,  to  them  and  their  own 
proper  use,  benefit  and  behoof  forever."  The  mortgage  was 
given  to  secure  part  of  the  purchase-money  of  the  mortgaged 
premises  on  the  conveyance  thereof  by  the  executors  to  the  mort- 
gagor, by  deed  of  even  date  with  the  mortgage.  It  expressly 
conveys  the  property  with  all  and  singular  the  tenements, 
hereditaments  and  appurtenances,  and  the  reversions  and  remain- 
ders, rents,  issues  and  profits,  and  all  the  estate,  right,  title,  in- 
terest, property,  possession,  claim  and  demand  whatsoever,  as 
well  in  law  as  in  equity,  of,  in  and  to  the  property.     The  inten- 


416  CASES  IN   CHANCERY.  [33  Eq. 

Lydecker  v.  Palisade  Land  Co. 

tiou  to  convey  a  fee  is  evident,  and  the  mortgage  will  be  re- 
formed accordingly. 

The  property  is  subject  to  the  taxes  for  1879  and  1880.  The 
complainant  insists  that  notwithstanding  the  provisions  of  the 
act  entitled  "A  further  act  concerning  taxes,  making  the  same  a 
first  lien  on  real  estate,  and  to  authorize  sales  for  the  payment 
of  the  same,"  passed  in  1879  (P.  L.  of  1879  p.  3Jfi\  her  mort- 
gage is  paramount  to  the  lien  of  those  taxes.  That  act  provides 
that  any  and  all  taxes  which  shall  or  may  thereafter  be  laid, 
assessed  or  imposed,  pursuant  to  the  laws  of  this  state,  against 
any  person  or  persons  or  corporations,  for  or  on  account  of  any 
lands,  tenements,  hereditaments  or  real  estate,  situate,  lying  and 
being  in  this  state,  together  with  lawful  interest  thereon  accruing, 
and  all  costs,  fees,  charges  and  expenses  in  relation  to  the  levy, 
assessment  and  collection  of  said  taxes,  shall  be,  become  and 
remain,  from  and  after  the  date  of  such  levy  and  assessment,  a 
full  and  complete  first  and  paramount  lien  on  all  the  lands,  tene- 
ments, hereditaments  or  real  estate,  on  account  of  which  such 
levy  and  assessment  shall  be  made,  for  the  space  of  two  years 
from  the  time  when  such  taxes  so  assessed  were  payable,  and 
that  any  and  all  estates  therein,  whether  legal  or  equitable,  and 
any  and  all  mortgages,  alienations,  devises,  descents,  liens  and 
encumbrances  of  every  kind  and  nature,  of,  in,  upon  or  against 
such  lands,  tenements,  hereditaments  or  real  estate,  shall  be  in 
every  respect  subject  and  subservient  to  the  lien  of  the  aforesaid 
taxes,  interest,  costs,  i^^^  charges  and  expenses.  The  language 
of  the  act  is  too  plain  to  admit  of  any  question  as  to  the  intention 
of  the  legislature.  But  the  complainant  insists  that  the  act  is  in 
contravention  of  her  constitutional  right ;  that  it  impairs  the 
obligation  of  her  mortgage  by  giving  taxes  priority  of  lien  over 
it,  such  lien  not  having  existed  when  her  mortgage  was  given. 
But  it  is  established  that  the  legislature  has  power,  by  virtue  of 
its  sovereignty,  to  make  taxes  a  lien  upon  the  estate  of  all  parties 
interested  in  the  land,  and  to  make  the  tax  title  paramount  to  all 
other  and  prior  claims  and  encumbrances.  Ti'ustees  of  Publio 
Schools  v.  Oily  of  Trenton,  3  Slew.  Eq.  667 ;  City  of  Paterson  v. 
O'Neill,  5  Stew.  Eq.  386.  There  will  be  a  decree  in  accordance 
with  these  views. 


6  Stew.]  FEBRUARY  TERM,  1881.  417 


Atha  V.  Jewell. 


Benjamin  Atha  et  al. 


Claude  B.  Jewell  et  al. 

Complainants  bought  lands  adjoining  their  factories  in  1879.  The  title  to 
an  interest  therein  (supposed  to  be  one-sixth)  was  in  some  doubt,  but  no 
claimant  therefor  had  appeared  since  1846,  and  they  were  assured  that  their 
title  to  the  whole  was  good.  In  order  to  fortify  their  title,  they  took  a  transfer 
of  a  declaration  of  sale  of  the  premises  for  taxes,  made  in  1869.  Afterwards 
they  contracted  for  the  erection  of  buildings  and  machinery  on  the  lands,  to 
be  used  in  connection  with  their  other  works,  and  erected  the  buildings  thereon 
accordingly.  On  a  bill  quia  timet,  filed  by  them  to  quiet  their  title  to  the 
before-mentioned  interest,  certain  claimants  appeared,  and  the  proceedings  in 
that  suit  were  dismissed  as  to  them.  On  a  bill  for  partition — Held,  that  the 
circumstances  of  the  case  were  not  such  as  to  deprive  complainants  of  the  right 
to  equitable  partition  between  them  and  the  owners  of  the  interest. 


Bill  for  partition.     On  final  hearing  on  pleadings  and  proofs. 
Mr.  D.  A.  Ryerson,  for  complainants. 
Mr.  A.  Q.  Keashey,  for  defendants. 

Note. — Where  improvements  have  been  made  by  a  tenant  in  common,  in 
good  faith,  he  is  entitled,  on  a  partition  of  the  land,  to  have  the  part  so  im- 
proved alloted  to  him,  or,  if  such  allotment  be  injurious  to  his  cotenant,  then 
to  receive  compensation  therefor.  Freeman  on  Part.  §§  509-511.  Also,  Eeed 
V.  Reed,  68  Me.  568;  Pope  v.  Whitehead,  68  N.  O.  191;  Collett  v.  Henderson, 
SO  N.  a  337;  Sanders  v.  Bohertson,  57  Ala.  465;  Spitts  v.  Wells,  18  Mo.  468; 
Nelson  v.  Leake,  S5  Mks.  199 ;  Paddock  v.  Shields,  57  Miss.  340 ;  Boberts  v. 
Beckwith,  79  III.  246;  Allen  v.  Hall,  50  Me.  253 ;  Beeves  v.  Beeves,  11  Heitk. 
669. 

See  Fair  v.  Fair,  121  Mass.  559  ;  Carland  v.  Jones,  2  Jones  Eq.  506  ;  Withers 
v.  Thompson,  4  Mon.  323. 

The  rule  seems  well  settled  that  one  tenant  cannot  charge  his  cotenant  with 
any  part  of  the  costs  of  improvements  put  on  their  lands,  without  the  lattei-^s 
consent.  Chambers  v.  Jones,  72  III.  275  ;  Austin  v.  Barrett,  44  Iowa  438  ;  Great 
V.  Jack,  3  Watts  238 ;  Carland  v.  Jones,  2  Jones  Eq.  506  ;  Freeman  on  Part.  ? 
262  ;  Thurston  v.  Dickinson,  2  Bich.  Eq.  317  ;  Morgan  v.  Morgan,  23  La.  Ann. 
502.  See  McAdam  v.  Orr,  4  Watts  &  Serg.  550  ;  Drennen  v.  Walker,  21  Ark 
5S9. 

27 


418  CASES  IN  CHANCERY.  [33  Eq. 

Atha  V.  Jewell. 

The  Chancellor. 

This  is  a  suit  for  partition.  The  laud  of  which  partition  is 
.sought  is  a  lot  of  about  one  and  fifty-eight  hundredths  acres 
lying  on  the  southerly  side  of  the  Passaic  river,  in  the  city 
of  Newark.  It  was  formerly  the  easterly  part  of  a  tract  of  salt 
meadow  of  about  six  acres.  The  complainants,,  Messrs.  Atha 
and  Illingworth,  claim  to  be  the  owners  of  five-sixths  of  the 
property.  They  bought  it  in  1879  of  David  S.  Brown  and 
wife.  Their  deed  is  dated  July  19th  in  that  year.  At  the 
same  time  they  bought  from  the  same  parties  the  lot  of  about 
one  and  thirty-two  hundredths  acres  adjoining  it  on  the  westerly 
side.  When  they  purchased  those  two  lots  they  were  the  own- 
ers of  the  land  adjoining  the  latter  lot  on  the  westerly  side,  and 
were  in  the  occupation  of  it,  carrying  on  there  a  very  extensive 
business  in  the  manufacture  of  cast  steel,  &c.,  and  they  pur- 
chased the  two  lots  in  order  to  extend  their  works.  Soon  after 
buying  them  they  took  possession,  and  immediately  began  filling 
in  the  low  places  on  them  and  erected  a  high  fence,  at  a  cost 
of  about  $500,  along  the  northeasterly  and  southeasterly  sides  of 
the  lot  of  which  partition  is  sought.  On  the  two  lots  they 
erected  a  large  frame  furnace  building  about  one  hundred  and 
nine  feet  by  eighty-five  feet,  about  two-thirds  of  which  are 
on  the  lot  in  suit.  They  also  erected  another  small  building, 
a  gas-house,  on  the  lot.  The  permanent  improvements  put 
by  them  on  the  two  lots  cost  them  upwards  of  $30,000, 
and    were   necessary   facilities   for    the   conduct  of  their  busi- 

Or,  for  repairs  expended  on  the  premises  without  notice  or  request. 
Doane  v.  Badger,  12  Mass.  66;  Mumford  v.  Brmim,  6  Cow.  4'^5 ;  Stevens  v. 
Thompson,  17  N.  H.  lOS  ;  Taylor  v.  Baldvdn,  10  Barb.  582,  626;  Deck's  Appeal, 
57  Pa.  St.  467;  Culvert  v.  Aldrich,  99  Mass.  74;  Young  v.  Oammel,  4  Greene 
(Iowa)  207  ;  Coolidge  v.  Hager,  43  Vt.  9. 

^itVer,  after  such  notice  and  request.  LouvaUe-v.  3Tenard,  6  111.  S9 ;  Gard- 
ner V.  Diederichs,  41  HI-  158 ;  Anderson  v.  Greble,  1  Ashm.  1S6 ;  Denman  v. 
Prince,  40  Barb.  213  ;  Grannis  v.  Cook,  3  N.  Y.  Sup.  Ct.  299;  Sears  v.  Mum- 
son,  23  Iowa  380;  Reed  v.  Jones,  8  Wis.  421;  McBearman  v.  McClnre,  SI  Ark. 
559  ;  Graham  v.  Pierce,  19  Gratt.  28  ;  Clark  v.  Plummer,  31  Wis.  44^. 

The  costs  of  such  repaire,  semble,  are  a  personal  charge  on  the  cotenant. 
Huston  V.  Springer,  2  Rawle  97  ;  see  Sarman  v.  Osborne,  4  Paige  336.  And  if 
he  refuse  to  contribute,  he  cannot  maintain  an  action  for  damages  against  his 
cotenants  because  they  did  not  repair.    StaUings  v.  Corbeti,  2  Speer  613. 


6  Stew.]  FEBRUARY  TERM,  1881.  419 

Atba  V.  Jewell. 

ness.  There  is  a  large  amount  of  machinery  in  the  build- 
ings. It  appears  that  when  they  bought  the  lot  in  suit 
they  were  aware  of  the  fact  that  there  might  be  a  question  as  to 
their  title,  so  far  as  regarded  an  undivided  sixth  of  the  land. 
The  property  had  been  conveyed  by  Ellison  Conger  as  his  own 
in  1846,  and  again  subsequently,  after  he  had  regained  the  title, 
in  1861 ;  but  it  was  supposed  that  his  title  might  not  have  been 
perfect,  but  there  had  been  many  years  (more  than  thirty) 
of  non-claim  by  any  one  interested  adversely  to  him  and  those 
who  held  under  him,  and  during  all  that  time  no  one 
except  him  and  those  claiming  under  him,  had  given  any 
attention  whatever  to  the  property.  It  had  been  sold  as 
long  ago  as  1869,  for  unpaid  taxes  of  1868,  and  the  city 
had  bought  it  in  and  had  taken  a  declaration  of  sale,  which 
was  transferred  to  the  complainants  as  a  fortification  of  their 
title.  Their  title,  if  Ellison  Conger,  indeed,  was  not  the  owner 
of  the  whole  property,  was  supposed  to  liave  been  made  good 
through  limitation  as  to  the  undivided  interest  before  referred 
to.  They  believed  it  was  good  and  that  they  might  safely  pro- 
ceed to  put  permanent  and  costly  improvements  on  the  property, 
and  they  did  so  accordingly.  They  had  been  told  of  the  possible 
defect  in  the  title,  but  relied  on  their  possession  and  the  title  ob- 
tained from  their  grantors.  They  appear,  according  to  Mr. 
Atha's  testimony,  to  have  been  advised  that  as  far  as  their  busi- 


The  representatives  of  a  tenant  for  life  cannot  claim  from  the  remaindermen 
the  value  of  improvements  erected  by  such  tenant.  Scott  v.  Guernsey,  4^  N. 
Y.106;  Cannon  v.  Hare,  1  Tenn.  Ch.  22;  see  Bond  v.  mil,  S7  Tex.  626; 
Way  V.  Way,  42  Conn.  52 ;  Piper  v.  F%irr,  47  Vt.  721 ;  Broijles  v.  Waddell,  11 
Heisk.  32. 

Whether  the  benefit  of  improvements  put  upon  the  premises  by  one  tenant, 
pending  a  partition,  can  be  claimed.  Parsons  v.  Copeland,  38  Me.  537 ;  West- 
ervelt  v.  Haff,  2  Sandf.  Ch.  98;  Annely  v.  De  Saussure,  12  S.  0.  {N.  S.)  438; 
Coble  v.  Clapp,  1  Jones  Eq.  173;  Taylor  v.  Foster,  22  Ohio  St.  255. 

After  partition,  the  liability  for  improvements  erected  before,  ceases.  Crafts 
V.  Orajts,  13  Gray  360 ;  Hoyt  v.  Kimball,  49  N.  H.  322 ;  Grier  v.  Fletcher,  1 
Jred.  417  ;  Beardsley  v.  Knight,  10  Vt.  185. 

The  improvements  are  estimated,  not  at  their  cost,  but  at  the  value  which 
they  have  imparted  to  the  premises.  Moore  v.  Williamson,  10  Rich.  Eq.  323  ; 
Pope  V.  Whitehead,  68  N.  C.  191.  And  the  allowance,  semble,  ought  to  bo 
sought  by  cross-bill.    Mahoney  v.  Mahoney,  65  111.  406. — ^Kep. 


420  CASES  IN  CHANCERY.  [33  Eq. 

Atha  V.  Jewell. 

uess  purposes  (meauiug  the  use  of  the  property)  were  concerned, 
the  title  which  they  had  would  be  just  as  good  for  them  as  if 
their  title  of  record  were  perfect,  but  if  they  should  waut  to  sell 
or  mortgage  the  property  the  defect  might  affect  the  valuation. 
After  purchasing  the  property,  they,  by  advice  of  counsel,  took 
proceedings  under  the  act  to  "  compel  the  determination  of 
claims  to  real  estate  iu  certain  cases  and  quiet  the  title  to  the 
same."  The  result  was  the  appearance  of  claimants  to  the  in- 
terest, but  the  bill  was  dismissed  as  to  them,  and  this  suit  was 
then  begun.  At  the  time  when  the  complainants  obtained  in- 
formation that  the  claimants  insisted  upon  the  validity  of  their 
title  to  an  interest  in  the  property,  the  buildings  had  not  been 
built  on  the  property,  but  they  had  been  contracted  for,  and 
foundations  for  them  and  for  the  machinery  to  be  put  into  them 
had  either  been  laid  or  preparation  by  driving  piles  had  been 
made  therefor,  and  the  machinery  had  been  ordered.  Mr. 
Atha  testifies  that  at  that  time  they  had  been  involved  in  an  ex- 
pense in  the  improvements  of  over  $25,000,  and  if  they  had  then 
stopped  them  tliey  would  have  been  liable  on  the  contracts,  on 
which  they  had  actually  paid  a  considerable  sum  of  money,  and 
that  work  to  the  amount  of  $10,000  or  $15,000  had  been  done. 
And  he  further  says  that  they  could  not  have  stopped  them 
without  very  great  sacrifice. 

The  main  question  presented  is,  whether  the  complainants  are, 
in  equity,  entitled  to  consideration  with  respect  to  those  improve- 
ments. The  defendants  insist  that  they  are  not,  but  that  parti- 
tion should  be  made  of  the  property  as  it  was  when  the  bill  was 
filed,  making  no  allowance  to  the  complainants  for  the  improve- 
ments. On  the  one  hand,  the  complainants  insist  that  there 
remains  of  the  lot  a  piece  of  twenty  feet  front  on  the  river,  run- 
ning through  to  the  rear,  not  occupied  by  their  buildings,  which 
is  enough  to  answer  all  equitable  claim  of  the  defendants  in  the 
partition;  that  that  piece,  or  part  of  it,  as  justice  may  require, 
may  be  assigned  iu  severalty  to  the  defendants,  or  if  the  whole 
of  it  should  not  be  enough  for  that  purpose,  owelty  may  be 
awarded.  On  the  other  hand,  the  defendants  urge  that  the  com- 
plainants have  forfeited  all  claim  to  equitable  consideration,  be- 


6  Stew.]  FEBRUARY  TERM,  1881.  421 

Atha  V.  Jewell. 

cause  of  their  attempts,  which  the  defendants  impute  to  them,  to 
defeat  by  bill  to  quiet  title  what  is  now  conceded  to  be  the 
just  claim  of  the  defendants  to  a  share  of  the  property,  and  also 
because  their  improvements  were  made  after  they  had  knowledge 
of  the  existence  of  such  claim,  and  knew  that  its  validity  and 
justice  would  be  insisted  on.  Under  the  circumstances  disclosed 
by  the  evidence,  tlie  fact  that  the  complainants  filed  the  bill  to 
quiet  the  title  cannot  disentitle  them  to  the  consideration  and 
protection  of  equity  in  the  premises.  As  before  stated,  for  more 
than  thirty  years  there  had  been  neither  claim  made  nor  atten- 
tion given  to  the  property,  either  by  the  defendants  or  any  one 
under  whom  they  claim.  Whether  there  was  in  fact  any  valid 
outstanding  claim  of  title  to  the  property,  was  believed  to  be 
quite  doubtful,  and  if  any  such  there  were,  there  was  doubt  as  to 
the  amount  of  the  interest  and  who  owned  it.  The  case  was  one 
of  the  kind  for  which  the  statute  was  designed,  and  there  is  no 
room  for  the  imputation  of  fraudulent  design  in  the  filing  of 
tiiat  bill.  When  the  complainants  received  information  that 
there  was  a  claim  which  it  was  insisted  could  be  established,  to 
an  interest  in  the  property,  they  had  proceeded  to  a  considerable 
distance  in  their  improvements,  which  had  been  undertaken 
while  as  yet  they  presumed  that  their  title  was  good  to  the 
whole  of  the  property.  Nor  is  there,  in  their  proceeding  to  make 
their  contemplated  improvements,  then  already  in  fact  not  only 
contracted  for,  but  begun — improvements  very  necessary  for 
their  business — any  ground  for  attributing  to  them  the  inequit- 
able design  of  rendering  the  defendants'  interest  less  valuable  or 
more  easy  of  acquisition  by  themselves,  by  reason  of  their  having 
occupied  the  greater  part  of  the  property  with  their  improve- 
ments. It  is  an  established  principle  that  a  court  of  equity,  in 
decreeing  partition,  does  not  act  ministerially  and  in  obedience 
to  the  call  of  those  who  have  a  right  to  the  partition,  but  founds 
itself  on  its  general  jurisdiction  as  a  court  of  equity,  and  admin- 
isters its  relief  ex  cequo  et  bono,  according  to  its  own  notions  of 
general  justice  and  equity  between  the  parties.  It  will, 
therefore,  by  its  decree  adjust  thrf  equitable  rights  of  all  the  par- 
ties interested  in  the  estate,  and  see  to  it  that  partition  is  made 


422  CASES  IN  CHANCERY.  [33  Eq. 

Atlia  V.  Jewell. 

accordiugly.  And  in  making  these  adjustments,  it  will  not  con- 
fine itself  to  the  mere  legal  rights  of  tlie  original  tenants  in 
common,  but  will  have  regard  to  the  legal  and  equitable  rights 
of  all  other  parties  interested  in  the  estate  which  have  been  de- 
rived from  any  of  the  original  tenants  in  common,  and  will,  if 
necessary  for  this  purpose,  direct  a  distinct  partition  of  several 
portions  of  the  estate  in  which  the  derivative  alienees  have  a 
distinct  interest,  in  order  to  protect  that  interest.  Sto7'2/^s  Eq.  Jur. 
§§  656  h,  656  c.  So,  if  improvements  have  been  made  by  a 
tenant  in  common,  suitable  compensation  will  be  made  to  him  on 
the  jiartition,  or  the  part  on  which  the  improvements  are  will  be 
assigned  to  him.  Id.  §  656  b.  In  BrooJcJield  v.  Williams,  1 
Gr.  Ch.  Slf-ly  a  person  owning  certain  shares  (four-sixths)  of  a 
small  tract  of  land  of  fourteen  acres,  tore  down  the  old  house 
and  barn  on  it,  which  had  gone  to  decay,  and  built  a  new  house 
and  out-buildings  at  a  cost  of  $2500,  and  greatly  improved  the 
lot  by  cultivation  and  making  new  fences.  He  knew  that  he 
owned  only  four-sixths  of  the  property,  and  he  had  no  consent 
(there  was  no  objection  or  opposition)  to  the  improvements  from 
his  co-tenants  in  common.  The  court  said  he  had  acted  in  good 
faith  and  with  an  honest  purpose  of  improving  the  property,  and 
protected  him  in  his  improvements  accordingly.  In  Doughaday  v. 
Croivell,  3  Stock.  SOI,  a  suit  for  partition,  the  complainant  had  ac- 
quired seven-eighths  of  a  tract  of  fifty  acres,  and  had  tried  in  vain 
to  get  a  deed  for  the  other  eighth.  After  her  failure  to  get  the 
remaining  eighth,  she  put  valuable  improvements  on  the  land. 
The  court  gave  her  partition  on  equitable  terms,  so  as  to  secure 
to  her  the  benefit  of  her  improvements.  In  Hall  v.  Paddock,  6 
C.  E.  Gr.  311,  the  bill  was  for  partition.  The  complainant's 
title  was  defective,  but  he  was  not  aware  of  it  M^hen  he  made  his 
improvements  (which  were  very  considerable)  on  the  property. 
He  sought  equitable  partition  against  the  defendant,  who,  having 
established  his  claim  by  ejectment,  was  proceeding  to  a  partition 
at  law.     The  chancellor  said  : 

"The  rule  that  a  tenant  in  common  who  has  made  improvements  on  the 
land  held  in  common,  is  entitled  to  an  equitable  partition,  is  well  established 


6  Stew.]  FEBRUARY  TERM,  1881.  423 

Atha  V.  Jewell. 

and  is  hardly  disputed  by  counsel.  The  only  good  faith  required  in  such  im- 
provements is  that  they  should  be  made  honestly  for  the  purpose  of  improving 
the  propferty,  and  not  for  embarrassing  his  co-tenants  or  encumbering  their 
€8tate  or  hindering  partition.  And  the  fact  that  the  tenant  making  such  improve- 
ments knows  that  an  undivided  share  in  the  land  is  held  by  another,  is  no 
bar  to  equitable  partition." 

It  is  quite  clear  that  the  complainants  in  this  case  are  entitled 
to  the  aid  of  equity ;  that  they  are  entitled  to  have  a  partition 
in  which  the  land  on  which  their  buildings  stand  will  be  set  off 
to  them.  But  it  may  be  that  the  residue  of  the  land,  if  awarded 
to  the  defendants,  will  not  be  enough  to  answer  the  purposes  of 
an  equitable  partition,  so  far  as  they  are  concerned,  either  be- 
cause it  would  not  be  sufficient  in  quantity,  or  if  sufficient  in 
quantity,  would  not  sell  for  as  much  as  it  would  bring  if  sold 
with  and  as  a  part  of  the  whole  lot,  and  therefore  is  not  enough 
in  value.  If  that  be  so,  the  complainants  must  pay  owelty.  In 
BrooT^idd  v.  Williams,  ubi  supra,  the  Chancellor  said  : 

"The  justice  of  the  case,  however,  strikes  me  as  plain  (and  that  is  mainly 
to  be  looked  at)  that  the  complainants  should  be  allowed  their  share  in  the 
land  on  which  the  buildings  erected  by  their  ancestor  are  located.  If  the  land 
on  which  they  stand  be  more  than  their  share,  they  must  make  recompense  in 
money,  but  if  the  remaining  lands  are  sufficient  to  give  the  defendants  their 
share  in  value,  it  must  be  given  out  of  them." 

The  question  as  to  whetner  the  complainants  shall  be  required 
to  account  to  the  defendants  for  use  and  occupation  was  suggested 
on  the  hearing.  It  appears,  as  before  stated,  that  the  complain- 
ants went  into  possession  of  the  property  in  or  about  July,  1879. 
It  also  appears  that  they  expended  money  in  the  improvement 
of  the  lot  by  filling  in  and  fencing.  They  have  undoubtedly, 
since  they  began  to  build,  which  was  about  the  time  they  took 
possession,  had  exclusive  use  of  the  land.  Mr.  Atha  says  that 
as  near  as  he  can  say,  they  began  their  improvements  the  latter 
part  of  July,  1879.  He  adds  that  they  had  driven  between  five 
and  six  hundred  piles  before  October  1st,  1879,  and  they  fenced 
the  property.  But  there  was  never  any  rent  received  from  the 
property.     It  produced  nothing,  was  a  mere  building  lot,  and  it 


424  CASES  IN  CHANCERY.  [33  Eq. 

Murphy  v.  Coates. 

does  not  appear  that  the  complainants  occupied  more  than  what 
would  have  been  their  share  if  their  share  had  been  assigned  to 
tliem  in  severalty.  The  defendants  never  demanded,  nor,  as  far 
as  appears,  expressed  any  desire  to  have  any  possession  of  the 
residue  of  the  lot.  Under  the  circumstances  there  should  be  no 
account  for  use  and  occupation.  If  the  complainants  filled  in 
the  lot,  or  otherwise  improved  it,  as  they  did,  with  the  fence,  it 
would  be  taken  into  account  if  there  were  an  account  for  use 
and  occupation. 

There  will  be  a  reference  to  a  master  to  ascertain  and  report 
the  respective  interests  of  the  parties  in  the  property,  and 
whether  a  decree  can  justly  and  equitably  be  made  by  assigning 
to  the  complainants  the  part  of  the  lot  whereon  the  buildings 
stand  and  to  the  defendants  their  share  out  of  the  rest  of  the 
land ;  and  whether  the  part  of  the  lot  whereon  the  buildings 
stand  is  more  than  the  share  of  the  complainants,  and  if  so 
what  owelty  should  be  paid  by  them  to  make  the  partition 
equitable,  if  that  part  be  assigned  to  them. 


Edwaed  H.  Murphy 

V. 

David  Coates  et  al. 


Two  mortgages  were  given,  one  in  1854  and  the  other  in  1855,  and  duly 
recorded,  to  H.,  wlio  died  in  1874,  and  gave  them  to  his  daughter  M.  In  1879, 
M.  asked  of  the  mortgagor,  who  then  owned  the  mortgaged  premises,  an  ac- 
knowledgment that  the  mortgages,  on  which  nothing  had  ever  been  paid,  were 
still  valid  securities,  to  which  the  mortgagor  agreed,  and,  in  the  presence  of  a 
witness,  signed  such  an  acknowledgment,  endorsed  on  each  mortgage.  After- 
wards the  mortgages  were  assigned  by  M.  to  the  complainant,  who  sent  them  to 
the  mortgagor  to  obtain  his  admission  as  to  the  genuineness  of  his  signature 
(his  mark),  and  the  mortgagor  thus  obtained  possession  of  them,  and  ever 
after  professed  to  be  unable  to  find  or  produce  them. — Hdd,  that  the  acknowl- 
edgment destroyed  the  presumption  of  payment  from  lapse  of  time  as 
to  the  mortgagor,   and   that,  as  a  second   mortgagee,  such   mortgagee  had 


6  Stew.]  FEBRUARY  TERM,  1881.  425 

Murphy  v.  Coates. 

such  constructive  notice  from  the  record,  where  the  mortgage  was  uncanceled, 
as  to  put  him  on  inquiry,  and  that  the  proof  in  the  case  showed,  outside  of  the 
acknowledgment,  that  the  mortgages  had  never  been  paid. 


Bill  to  foreclose.     On  final  hearing  on  pleadings  and  proofs. 

Mr.  James  Buchanan,  for  complainant. 

Mr.  James  Buchanan,  for  answering  defendants. 

The  Chancellor. 

The  bill  is  filed  to  foreclose  two  mortgages  on  land  in  Trenton, 
given  by  David  Coates  to  Louis  Hargous,  one,  April  6th,  1854, 
for  $200,  payable  in  one  year,  with  interest,  and  the  other,  Jan- 
uary 15th,  1855,  for  $278,  also  payable  in  one  year,  with  interest. 
Each  mortgage  was  duly  recorded  in  the  month  in  which  it  was 
given.  Hargous  died  in  March,  1874.  He  held  the  mortgages 
at  his  death.  By  his  will  he  gave  the  residue  of  his  estate,  of 
which  residue  the  mortgages  formed  part,  to  Maria  M.  Hargous, 
who  thus  became  the  owner  of  the  mortgages.  She  was  one  of 
the  executors.  In  March,  1879,  she,  being  desirous  of  obtaining 
from  Coates,  who  still  owned  the  mortgaged  premises,  as  he  does 
yet,  an  acknowledgment  that  the  mortgages  (on  whicli  nothing 
has  ever  been  paid)  were  still  unpaid  and  were  valid  securities, 
obtained  Coates's  signature  (which  he  appears  to  have  given 
readily)  to  an  endorsement  on  each  of  the  mortgages  and  each 
of  the  bonds  which  they  were  respectively  made  to  secure ;  that 
no  part  of  the  principal  or  interest  had  been  paid  from  the  date 
of  the  instruments,  and  that  the  whole  of  the  principal  and  the 
interest  from  the  date  of  the  instrument  was  due  and  unpaid. 
Peter  Hargous,  the  nephew  of  Maria  M.  Hargous,  obtained 
Coates's  signature  to  the  endorsements.  He  called  on  Coates  with 
the  bonds  and  mortgages  for  the  purpose,  and  took  James  Cun- 
ningham with  him.  The  latter  swears  that  Hargous  told  Coates 
that  he  had  the  papers,  and  asked  him  if  he  was  willing  to  sign 
them,  and  HargoUs  asked  Cunningham  to  read  them,  which  he 


426  CASES  IN  CHANCERY.  [33  Eq. 

Mur[)h_v  V.  Coates. 

did  twice,  and  Hargous  then  asked  Coates  if  they  were  satisfac- 
tory, and  Coates  said  Yes,  lie  owed  tlie  money  and  was  willing  to 
do  everything  that  was  rigiit ;  that  Hargous  asked  Coates  to  sign 
the  papers,  and  Coates  said  he  would  not,  for  he  could  not  write, 
but  asked  Ciinniughani  to  write  his  name  for  him,  and  said  that 
if  Cunningham  would  do  so,  he  would  make  his  mark;  that 
Cunningham  wrote  Coates's  name,  and  Coates  took  the  pen  and 
made  his  mark,  and  that  this  was  done  on  all  the  papers.  Peter 
Hargous  swears  that  he  told  Coates  that  he  had  come  to  get  him 
to  sign,  and  told  him  his  reason  for  wanting  him  to  sign,  viz., 
to  save  his  aunt  from  any  loss,  and  says  he  added  that  he  Unew 
Coates  would  do  what  was  right  after  the  endorsements  were  read 
to  him.  He  further  says  that  after  the  endorsements  were  read 
to  Coates,  the  latter  signed  them,  and  that  there  were  four  papers. 
On  the  11th  of  June,  1879,  Maria  M.  Hargous  assigned  the 
bonds  and  mortgages  to  Edward  H.  Murphy,  the  complainant. 
On  the  4th  of  August  following.  Murphy  sent  Peter  Bakes  with 
them  to  Coates  to  get  the  acknowledgment  of  his  signature  (his 
mark)  on  the  endorsements.  Bakes  went  to  Coates's  house  and 
showed  him  the  papers,  and  Coates  said  he  knew  nothing  about 
them.  Bakes  asked  him  about  his  mark,  and  he  replied  that  he 
did  not  know  anything  about  that.  Coates  told  Bakes  to  come 
again  the  next  day.  Bakes  asked  him  if  he  was  ready  to  make 
the  acknowledgment,  and  Coates  asked  him  to  let  him  see  the 
papers,  and  Bakes  handed  them  to  him,  and  Coates  kept  them 
and  refused  to  return  them.  He  has  ever  since  professed  to  be 
unable  to  produce  them.  It  is  not  improbable  that  he  has 
destroyed  them.  In  February,  1876  (before  he  signed  the 
acknowledgments),  Coates  executed  another  mortgage  on  the 
same  property  to  the  defendant  Frederick  Walter,  for  ^276,  and 
interest. 

Both  Coates  and  Walter  contend  that  no  suit  for  foreclosure  can 
be  maintained  on  the  complainant's  mortgages,  because,  as  they 
insist,  they  are,  from  lapse  of  time,  presumed  to  have  been  paid. 
But  the  presumption  of  payment  which  arises  in  regard  to  mort- 
gages from  lapse  of  time,  without  payment  of  interest  or  demand 
made,  is  only  a  presumption,  and  it  is  one  which  may  be  rebutted. 


6  Stew.]  FEBRUARY  TERM,  1881.  427 

Stevens  v.  Eeeves. 

Wanmaher^s  Exrs.  v.  Van  Bushirh,  Saxt.  685  ;  Barned  v.  Earned, 
6  C.  E.  Gr.  ^Ii£.  lu  this  case,  as  to  Coates,  he  has  acknowl- 
edged, both  verbally  and  in  writing,  that  neither  principal  nor 
interest  has  been  paid.  And  as  to  Walter,  the  second  mortgagee, 
he  had  notice  (constructive  notice,  at  least,  from  the  records)  of 
the  existence  of  the  complainant's  mortgages,  and  inquiry  would 
have  led  him  to  the  knowledge  that  they  were  wholly  unpaid. 
The  records  showed  the  mortgages,  and  as  far  as  the  records 
■went,  that  they  were  not  satisfied,  for  they  were  not  canceled  of 
record.  Coates,  in  his  testimony  in  this  cause,  swears' that  nothing 
was  ever  paid  on  account  of  either  principal  or  interest.  Har- 
gous,  the  mortgagee,  appears  to  have  been  his  employer,  and  to 
have  been  very  indulgent  to  him. 

Again,  it  may  be  remarked,  that  Walter's  mortgage  was  given, 
not  to  secure  a  loan,  but  to  secure  a  precedent  debt,  which,  he 
says,  had  run  for  a  good  Avhile,  it  might  have  been  for 
years ;  and  though  he  says  it  includes  a  sum  of  money  (he  says 
he  thinks  about  $60),  which  he  alleges  he  lent  to  Coates,  that 
money  was  lent  some  weeks  before  the  mortgage  was  given,  and 
does  not  appear  to  have  been  lent  on  the  security  of  the  mort- 
gage. 

The  complainant  is  entitled  to  a  decree  for  foreclosure  and  sale, 
and  his  mortgages  are  entitled  to  priority  over  the  mortgage  to 
Walter. 


James  H.  Steveks 

V. 

CoRTLANDT  V.  Reeves  and  wife. 

A  mortgage  was  given  in  1871,  to  a  partnership  firm,  payable  in  ten  yeera. 
In  1875  the  firm  assigned  it  to  the  complainant,  as  collateral  security  for  their 
note. — Hdd, 

(1)  That  usury,  taken  by  the  complainant  from  the  partners  on  their  note, 
could  not  be  set  up  as  a  defence  by  the  mortgagor  on  foreclosure. 


428  CASES  IN  CHANCERY.  [33  Eq. 

Stevens  v.  Eeeves. 

(2)  That  the  omission  of  the  assignor  as  a  party  to  a  foreclosure  by  the  com- 
plainant (-who  held  the  mortgage  as  collateral,  as  before  stated),  no  objection 
on  that  ground  being  raised  by  the  answer,  and  no  necessity  for  his  being  made 
a  party  appearing,  could  not  be  set  up  at  the  hearing. 


Bill  to  foreclose.     On  final  hearing  on  pleadings  and  proofs. 
Mr.  31.  B.  Taylor,  for  complainant. 
Mr.  J.  B^Huffman,  for  defendants. 

The  Chancellor. 

The  questions  presented  by  the  briefs  of  counsel  are  these  four : 
First,  Avhether  the  amount  of  a  certain  check  of  $120,  drawn  by 
R.  D,  Edwards  &  Son,  on  the  First  National  Bank  of  Camden, 
dated  June  21st,  1875,  and  payable  to  complainant  or  bearer, 
which  is  admitted  to  have  been  paid  on  account  of  the  mortgage 
in  suit,  is  included  in  a  general  credit  of  interest  paid  to  "  March, 
1875,"  on  the  note,  as  collateral  security  for  which  the  complain- 
ant holds  the  bond  and  mortgage.  Second,  whether  the  amount 
of  two  other  checks,  drawn  by  R.  D.  Edwards  &  Sou,  on  the 
Cumberland  National  Bank,  one  for  $100,  dated  May  11th,  1875, 
payable  to  self  or  bearer,  and  the  other  for  $246,  dated  May 
29th,  1875,  payable  to  the  complainant  or  order,  should  be 
credited  as  payments  on  the  note.  Third,  whether  the  defend- 
ants iare,  seeing  that  they  have  not  set  up  usury  in  their  answer, 
entitled  to  a  credit  of  the  unlawful  interest  proved  to  have  been 
jiaid  on  the  note  from  its  date  to  March  18th,  1875 ;  and  fourth, 
whether  the  mortgagees,  who  assigned  the  bond  and  mortgage  to 
the  complainant,  as  collateral  security  for  the  payment  of  their 
note  to  him,  are  necessary  parties  to  this  suit. 

The  bond  and  mortgage  are  dated  March  11th,  1871,  and  were 
given  by  the  defendants  to  Richard  D.  and  James  H.  Edwards, 
to  secure  the  payment  of  $1,178  in  ten  years,  in  equal  annual 
payments,  with  interest  annually.  The  note,  as  collateral  to 
which  the  complainant  holds  them,  is  for  $1,000  and  interest,  is 


6  Stew.]  FEBEUARY  TERM,  1881.  429 

Stevens  v.  Keeves. 

dated  March  18th,  1875,  and  was  made  by  the  mortgagees,  by 
their  firm  name  of  R.  D.  Edwards  &  Son,  in  his  favor. 

First,  as  to  the  $120  check.  The  complainant  swears  posi- 
tively that  the  amount  of  it  was  included  in  the  credit,  endorsed 
on  the  note,  of  interest  paid  up  to  March,  1875.  He  says  that 
check  paid  the  interest  in  full  on  the  note  up  to  March  18tli, 
1875.  Opposed  to  this  is  the  testimony  of  James  H.  Edwards, 
who  says  that  that  check  was  not,  to  his  knowledge,  included  in 
the  credit  of  March  18th,  1875;  that  he  is  positive  it  was  not; 
that  it  was  a  credit  to  go  on  the  note  outside  of  that;  that  it  is  not 
included  in  any  of  the  credits  on  the  note,  and  that  it  should  be 
credited  on  the  note  on  the  day  of  its  date.  On  cross-examina- 
tion he  says  that  he  paid  all  the  interest  himself,  but  cannot  tell 
on  what  day,  as  he  has  nothing  to  show  for  it ;  that  he  paid  it 
in  money  and  took  no  receipt  for  it,  and  that  he  never  paid 
interest  in  checks.  He  adds  that  he  has  overhauled  the  books 
and  finds  no  checks  to  the  complainant's  credit  for  interest. 
Being  re-examined  in  chief,  he  says,  to  the  best  of  his  knowledge, 
the  interest  was  all  paid  up  to  March  18th,  1875,  before  he  gave 
the  check.  It  is  quite  probable  he  is  mistaken  when  he  says 
that  he  never  paid  interest  on  the  note  in  checks,  for  he  cer- 
tainly did  make  payments  on  account  of  the  note  in  checks. 

He  claims  to  have  given  the  check  in  controversy  on  account 
of  the  note,  and  he  also  swears  that  two  other  checks  for  $100 
and  $246  respectively,  dated  in  May,  1875,  were,  to  the  best  of 
his  knowledge,  given  to  the  complainant  as  payments  on  the 
note;  and  he  testifies  also,  positively  (and  correctly), that  another 
check  for  $100,  dated  in  August,  1878,  and  still  another  for 
$75,  given  on  or  about  September  1st,  1875,  were  given  on  ac- 
count of  the  note.  Moreover,  the  qualified  way  in  which 
he  expresses  himself  when  he  says  the  amount  of  the  check  was 
not  covered  by  the  receipt  for  interest  up  to  March  18th,  1875, 
is  some  evidence  at  least  that  he  is  not  quite  confident  of  the  ac- 
curacy of  his  recollection.  Again,  as  will  be  seen  when  his  tes- 
timony in  reference  to  the  two  checks  dated  in  May,  1875,  for 
$100  and  $246  respectively,  is  considered,  his  testimony  is  not 
entitled  to  such  credit  as  that  his  statement  (certainly  somewhat 


430  CASES   IN  CHANCERY.  [33  Eq. 

Stevens  v.  Eeeves. 

qualified,  to  say  the  least  of  it),  from  recollection  should  be  per- 
mitted to  countervail  the  positive  testimony  of  the  complainant 
to  the  contrary.  Edwards  swears  that  "to  the  best  of  his 
knowledge  "  those  checks  were  payments  on  account  of  the  note. 
The  complainant,  on  the  other  hand,  swears  that  they  were  not, 
but  were  checks  drawn  by  E,.  D.  Edwards  &  Son  on  the  Cum- 
berland National  Bank,  to  be  deposited  to  their  own  credit  in 
the  First  National  Bank  of  Camden,  of  which  the  complainant 
was  at  that  time  cashier.  The  books  of  the  bank  corroborate 
him,  but  Edwards's  testimony  on  the  subject  is  in  no  way  sup- 
ported. The  conclusion  is  that  those  checks  and  the  §120  check 
should  not  be  credited  on  the  note;  the  amount  of  the  latter 
having  already  been  credited  thereon,  and  the  former  not  having 
been  given  to  the  complainant  at  all,  nor  on  account  of  the  note 
in  any  way,  but  the  amounts  thereof  having  gone  to  the  credit  of 
R.  D.  Edwards  &  Son  for  their  own  use. 

It  is  admitted  by  the  complainant  that  he  received  interest  at 
the  rate  of  twelve  per  cent,  per  annum  on  the  note  from  its  date 
up  to  March  18th,  1875.  The  complainant's  counsel  insists 
that  the  defendants  cannot,  under  the  practice  of  the  court,  be 
permitted  to  avail  themselves  of  this  fact  by  way  of  defence  or 
even  of  credit  on  the  note,  because  the  defendants  have  neither 
set  up  usury  in  their  answer  nor  claimed  the  benefit  of  the  un- 
lawful interest.  But  the  defendants  are  in  no  situation  to  plead 
or  claim  the  benefit  of  the  unlawful  interest.  The  note  was  not 
given  by  them  and  does  not  represent  their  debt.  The  bond 
and  mortgage  are  the  evidences  of  their  indebtedness,  the  note 
of  that  of  R.  D.  Edwards  &  Son.  If  unlawful  interest  has 
been  paid  on  the  note  it  is  a  matter  which  does  not  cancern  the 
defendants,  and  of  which  they  can  have  no  advantage. 

The  bond  and  mortgage  were  assigned  to  and  are  held  by  the 
complainant  merely  as  collateral  security  for  the  note.  That  fact 
does  not  appear  by  the  bill  but  it  does  by  the  proof.  The  com- 
plainant produces  two  assignments,  one  written  on  the  mortgage 
and  the  other  a  separate  paper.  The  former,  by  its  terms,  ex- 
pressly assigns  the  bond  and  mortgage  as  collateral  security 
merely.     That  assignment  not  having  been  acknowledged  could 


6  Stew.]  FEBRUARY  TERM,  1881.  431 

Stevens  v.  Keeves. 

not  be  recorded,  and  therefore  the  other,  which  is,  by  its  terms, 
absolute,  was  executed  and  acknowledged  and  recorded.  In  his 
testimony,  the  complainant  says  the  assignments  were  as  collat- 
eral security  for  the  payment  of  the  note  and  he  also  says  that 
when  the  note  is  all  paid  the  mortgage  should  be  canceled. 
The  defendants,  who  are  the  mortgagor  and  his  wife,  state  in 
their  answer  that  they  have  paid  the  amount  of  the  mortgages, 
and  that  the  latter  paid  it  to  the  assignee.  This  is  not  proved, 
indeed,  and  the  answer  is  not  evidence  of  the  fact,  but  the  state- 
ment is  in  accordance  with  the  allegation  of  the  complainant 
that  the  mortgagees  have  no  claim  to  any  surplus  of  the  amount 
apparently  due  on  the  mortgage  over  the  amount  due  on  the 
note.  Richard  D.  Edwards,  the  senior  partner  of  the  firm  of 
R.  D.  Edwards  &  Son,  is  dead;  James  H.  Edwards,  the  other 
partner,  has,  as  has  been  seen,  been  a  witness  in  the  cause  and 
he  has  not  denied  or  questioned  the  above-mentioned  statement 
of  the  complainant  that  when  the  note  is  paid  the  mortgage 
should  be  canceled.  He  has  not  set  up  any  claim  to  any  sur- 
plus or  any  interest  in  tlie  mortgage  in  view  of  any  surplus. 
Though  it  is  a  general  rule  that  if  the  assignment  of  a  mortgage 
be  not  absolute,  but  merely  as  collateral  security,  the  assignor  is  a 
necessary  party  to  the  suit  [Ililler  v.  Henderson,  2  Stooh.  820), 
yet  if  no  necessity  appears  on  the  face  of  the  pleadings  for  mak- 
ing him  a  party,  and  it  does  not  appear  that  he  has  any  interest, 
the  objection  made  at  the  hearing  that  he  is  not  a  party  will  not 
prevail.  Woodruff  v.  Depue,  1  MoCart.  168.  Here  it  does 
not  appear  by  the  bill  that  the  mortgagees  have  any  interest  in 
the  surplus.  The  answer  is  silent  on  the  subject.  It  makes  no 
objection  for  want  of  parties.  The  complainant  alleges  in  his 
testimony  that  the  mortgagees  have  no  interest  in  the  surplus, 
and  the  surviving  mortgagee,  when  on  the  stand  as  a  witness, 
does  not  deny  it.  Moreover,  the  entire  testimony  is  devoted  to 
proof  not  as  to  how  much  is  due  on  the  mortgage,  but  how 
much  is  due  on  the  note,  and  the  complainant  proposes  to  take 
no  decree  for  any  surplus.  The  objection  of  want  of  parties 
cannot  prevail. 

There  avIII  be  a  decree  for  the  complainant  for  the  amount 
due  on  the  note,  §1,410.70,  and  his  costs. 


432  CASES  IN  CHANCERY.  [33  Eq. 

Woolsey  v.  Cummings  Car  Works. 

Benjamin  F.  "Woolsey 

V. 

The  Cummings  Car  Works. 


Exceptions  to  a  master's  report  on  the  accounts  of  a  receiver  appointed  by 
this  court,  involving  his  management  and  disposal  of  the  trust  property,  and 
the  amount  of  his  compensation,  considered  and  overruled. 


In  insolvency.     On  exceptions  to  master's  report. 

3fr.  F.  McGee,  Mr.  B.  0.  Babbitt  and  Mr.  W.  P.  WihoUy  for 
exceptants. 

Mr.  G.  Collins,  for  the  receiver. 

The  Chancellor. 

Pursuant  to  orders  of  this  court,  the  master  reported  upon  the 
accounts  of  Mr.  Chaddock,  the  receiver  appointed  by  this  court 
for  the  creditors  and  stockholders  of  "  The  Cummiugs  Car 
Works,"  and  the  proper  allowance  to  be  made  to  him  for  his  ser- 
vices in  the  trust.  Certain  of  the  creditors  have  excepted  to  the 
report.  The  several  exceptants  are  Josiah  F.  Bailey  and  others, 
trustees  for  some  of  the  creditors,  Abuer  A.  Griffing  and  E.  S. 
Jaffi'ay  &  Co.  The  exceptions  of  the  last  named  are  identically 
the  same.  To  consider  those  filed  by  the  trustees  :  The  first  and 
second  complain  of  conclusions  of  fact  drawn  by  the  master  from 
the  evidence.  In  these  conclusions  he  is  fully  sustained  by  the 
proof.  The  exceptions  will  consequently  be  overruled.  The 
third  is  an  objection  to  the  finding  of  the  master  with  respect  to 
part  of  the  price  of  certain  goods  of  the  trust,  sold  by  him  to  a 
creditor.  The  receiver  took,  in  part  payment,  at  its  full  amount, 
a  note  of  the  company,  on  which  the  creditor  would  be  entitleil 
to  a  dividend  in  the  distribution  of  the  net  proceeds  of  the  assets ; 
and  took,  at  the  same  time,  a  \yell-secured  guaranty  in  writing 


6  Stew.]  FEBRUARY  TERM,  1881.  433 

Woolsey  V.  Cummings  Car  Works. 


for  the  payment  of  the  difference,  whatever  it  might  be,  between 
the  amount  of  the  dividend,  when  declared,  and  the  amount  at 
which  the  note  was  taken.  The  transaction  appears  to  have  been 
for  the  advantage  of  the  trust  in  the  price  at  which  the  goods 
were  sold ;  and  the  length  of  the  credit  given  is  not  such  as  to 
amount  to  a  breach  of  trust,  especially  in  view  of  the  pains  taken 
and  means  employed  to  guard  the  trust  against  loss  in  the  trans- 
action. That  exception  will  be  overruled.  The  fourth  exception 
is  to  the  amount  of  compensation  allowed  by  the  master.  There 
were  three  sales  of  the  property  of  the  trust.  The  first,  which 
was  of  the  real  estate,  machinery,  tools,  &c.,  took  place  in  the 
latter  part  of  May,  1877.  It  was  set  aside  for  inadequacy  of 
price,  and  the  property  was  again  sold  (but  for  a  higher  price) 
on  tlie  1st  of  October  following.  The  last  sale  was  of  certain 
choses  in  action,  sold  to  close  up  the  trust,  and  it  took  place  in 
May,  1878.  The  master,  after  a  review  of  all  the  facts,  reports 
that  the  receiver's  compensation  should  be  $200  a  month,  from 
the  time  of  his  appointment,  October  17th,  1873,  to  the  1st  of 
May,  1878.  He  also  reports  that  the  receiver  should  be  allowed 
something  for  his  services  and  expenses  in  finding  a  receiver's 
certificate  of  the  New  York  and  Oswego  Midland  Railroad  Com- 
pany, delivered  by  Mr.  Chaddock  to  certain  creditors  of  the  car 
company  by  mistake  (two  being  delivered  instead  of  one,  to  which 
alone  they  were  entitled),  the  loss  of  which  was  not  discovered 
until  the  examination  before  the  master.  The  receiver  was  the 
treasurer  of  the  car  company.  At  a  meeting  of  the  creditors  and 
stockholders,  held  in  view  of  its  embarrassments  and  the  neces- 
sity of  applying  for  the  appointment  of  a  receiver,  he  was  desig- 
nated as  the  proper  person  to  be  appointed  receiver,  and  the 
amount  suggested  as  his  compensation  was  the  amount  which  he 
was  receiving  as  treasurer,  $200  a  month,  for  his  expenses  of 
living;  his  compensation,  however,  to  be  fixed,  of  course,  by  this 
court.  He  stated  to  the  meeting  that  he  would  act  as  receiver  if 
appointed,  and  would  draw  $200  a  month  for  the  expenses  of  his 
living,  leaving  it  to  this  court  to  fix  his  compensation.  He  has 
rendered  services  of  a  very  valuable  character  to  the  trust  for  a 
considerable  length  of  time;  he  conducted,  under  order  of  this 

28 


434  CASES  IX  CHAXCERY.  [33  Eq. 

Woolsey  v.  Cummings  Car  Works. 

court,  the  business  of  the  company,  raih'oad  car  building,  and  he 
has  generally  given  to  the  business  of  the  receivership,  careful 
and  valuable  attention.  I  find  in  the  evidence  no  reason  for  any 
imputation  whatever  that  in  any  of  his  transactions  in  the  trust, 
he  has  been  governed  or  actuated  by  any  unworthy  motives,  or 
sought  to  promote  his  private  ends.  Xor  do  I  think  the  allow- 
ance too  great.  The  exception  on  this  point,  therefore,  should  be 
overruled.  There  is  nothing  before  me  from  which  I  could 
make  an  award  of  compensation  to  the  receiver  in  respect  of  his 
trouble  or  expense  in  finding  the  missing  certificate,  if  I  deemed 
it  proper  to  make  one;  but,  in  my  judgment,  he  is  not  entitled 
to  any  compensation  in  the  matter.  He  would  have  been  charge- 
able with  the  value  of  the  certificate  if  he  had  not  been  able  to 
find  or  account  for  it. 

Of  the  exceptions  of  Mr.  Griffing  and  Messrs.  E.  S.  Jaffray 
&  Co.,  the  first  objects  to  the  payment  by  the  receiver  of  the 
mortgage  encumbrances  which  were  on  the  property  of  the  com- 
pany at  the  time  of  its  failure,  because  they  were  made,  as  alleged, 
without  authority ;  but  it  is  clear  from  the  evidence  that  the  pay- 
ments referred  to,  if  made  without  an  order,  were  made  in  the 
exercise  of  a  sound  discretion.  The  second  exception  is  an 
objection  to  the  order  authorizing  the  receiver  to  carry  on  the 
business  for  the  benefit  of  the  trust.  Obviously,  the  propriety 
of  making  the  order,  cannot  be  called  in  question  by  an  exception 
to  the  master's  report  on  the  receiver's  account.  The  exception 
will,  therefore,  be  struck  out.  The  third  objects  to  the  finding 
of  the  master  that  the  business  done  by  the  receiver  in  manufac- 
turing under  the  authority  just  mentioned,  was  productive  of 
profit  to  the  trust.  The  fact  is  immaterial  to  any  question  legiti- 
mately arising  on  the  master's  report,  unless  it  be  as  to  the  amount 
of  compensation  to  be  allowed  to  the  receiver.  That  would  be 
affected  by  losses  incurred  in  the  manufacturing  business  through 
his  negligence  or  misconduct;  but  no  loss  on  those  accounts,  or 
either  of  tliem,  is  charged  or  appears.  The  exception  will  be 
overruled.  The  fourth  exception  is  the  same  as  one  which  has 
been  already  considered,  the  third  exception  of  the  trufetees,  which 
was  overruled.     The  fifth  and  sixth  exceptions  refer  to  the  com- 


6  Steav.]  FEBRUARY  TERM,  1881.  435 

Woolsey  v.  Cummings  Car  Works. 

pensation  to  be  allowed  to  the  receiver.  For  reasons  already 
given  on  the  exception  on  the  same  subject  by  the  trustees,  the 
exception  will  be  overruled.  The  seventh,  eighth,  sixteenth, 
eighteenth  and  nineteenth  exceptions  are  objections  to  the  form  of 
the  receiver's  accounts  and  the  alleged  non-production  of  vouchers. 
It  appears,  by  the  master's  report,  that  the  trustees  and  Mr. 
Griffing  appeared  before  him  at  the  taking  of  the  account,  and 
that  the  only  objections  made  to  the  account  or  the  allowance 
thereof,  were  those  on  which  he  has  passed,  none  of  which  have 
any  reference  whatever  to  the  subjects  of  the  exceptions  now 
under  consideration.  The  other  exceptants,  Messrs.  E.  S.  Jaffray 
&  Co.,  did  not  appear  before  the  master,  and  were  let  in  to  except 
on  condition  that  they  should  adopt  the  exceptions  of  Griffing. 
Under  the  cii'cumstances,  the  exceptions  last  specified  should  be 
struck  out.  The  ninth,  tenth,  fourteenth,  fifteenth  and  twentieth 
exceptions  are  merely  general  complaints,  in  the  most  general 
terms,  of  mismanagement  of  the  trust  estate.  They  will  all  be 
struck  out.  The  eleventh  is  a  charge  of  fraud  and  imposition, 
©n  the  part  of  the  receiver,  on  the  court,  in  obtaining  an  order 
authorizing  him  to  make  a  contract  with  the  New  Jersey  and 
New  York  Railroad  Company.  The  twelfth  is  a  mere  personal 
allegation  of  non-compliance,  on  the  part  of  the  receiver,  with 
that  order.  The  thirteenth  charges  misrepresentation,  fraud  and 
imposition  on  tlie  coart,  on  the  part  of  the  receiver,  in  obtaining 
an  order  to  make  a  settlement  with  the  last-mentioned  railroad 
company.  For  reasons  before  stated,  these  exceptions  will  all  be 
^ruck  out.  The  seventeenth  is  an  objection  that  the  receiver 
ought  not  to  be  allowed  for  commissions  paid  on  sales  of  goods 
of  the  trust  to  the  railroad  company  just  mentioned.  This  excep- 
tion will,  under  the  circumstances,  be  struck  out,  on  the  ground 
of  surprise.  The  objection  is  made,  for  the  first  time,  by  the 
exception.  Though  all  the  exceptions  will  be  either  overruled 
or  struck  out,  the  exceptants  will  not,  under  the  circumstances, 
be  required  to  pay  costs.  Their  action  in  excepting  and  pursuing 
the  exceptions,  was  in  behalf  of  all  the  creditors. 


436  CASES  IN  CHANCERY.  [33  Eq. 


Newark  Savings  Institution  v.  Forman. 


The  Newark  Savings  Institution 

V. 

Samuel  R.  Foeman  et  al. 

The  act  of  1880  (P.L.  of  1880  p.  S55),  providing  that  in  foreclosure  proceedings 
thereafter  commenced,  no  personal  decree  for  deficiency  shall  be  taken,  applies 
to  mortgages  given  before  the  date  of  its  passage,  and  is  not,  so  far  as  cases  in 
which  there  is  a  remedy  at  law  are  concerned,  unconstitutional  as  depriving  a 
party  of  any  remedy  for  enforcing  a  contract  which  existed  when  the  contract 
was  made,  because  a  more  efficacious  remedy  of  the  same  sort  at  law  remains, 
and  the  legislature  may,  without  infringing  the  prohibition  of  the  constitution, 
take  away  one  of  two  or  more  equally  efficacious  remedies  of  the  same  sort. 


Bill  to  foreclose.     Demurrer. 

M7'.  JE.  Q.  Keasbey,  for  demurrants. 

Mr.  A.  S.  Hubbell,  for  complainant. 


Note. — The  following  cases  illustrate  the  rule  that  a  statute  taking  away 
one  remedy  for  enforcing  a  contract  or  right  is  not  unconstitutional  if  another 
remedy  remain. 

Abolishing  distress  for  rent.  Van  Rensselaer  v.  Snyder,  9  Barb.  303,  13  N. 
Y.  299  ;  Guild  V.  Rogers,  8  Barb.  502  ;  Lockelt  v.  Uscy,  28  Qa.  345;  Conkey  v. 
Hart,  U  N.  Y.  22;   Van  Rensselaer  v.  Says,  19  jV.  Y.  68. 

Requiring  that  the  makers  and  endorsers  of  a  note  shall  be  sued  together. 
McMillan  v.  Sprague,  4  How.  {3fiss.)  647 ;  see  Givens  v.  Western  Bank,  2 
Ala.  397 ;  Baldwin  v.  Newark,  9  Vr.  158. 

Repealing  a  statute  authorizing  a  state  to  be  sued.  Memphis  B.  R.  v.  Ten- 
nessee,  (S.  C.  U.  S.)  21  Alb.  L.  J.  355  ;  Tennessee  v.  Sneed,  96  U.  S.  69;  or  a 
county,  Hunsaker  v.  Borden,  5  Cal.  288. 

Repealing  a  statute  authorizing  tbe  forfeiture  of  a  corporation's  franchises 
for  non-payment  of  its  debts.  Aurora  Co.  v.  Holthome,  7  Ind.  59  ;  State  v.  Tom- 
beckbee  Bank,  2  Stetv.  SO ;  see  Powell  v.  Sammons,  31  Ala.  552 ;  Story  v.  Fur- 
man,  25  N.  Y.  214;  Ireland  v.  Turnpike  Co.,  19  Ohio  St.  369;  Read  v.  Frank- 
ford  Bank,  23  Me.  318. 

Aliter,  as  to  a  repealer  exempting  the  stock  from  liability,  but  rendering  the 
stockholders  personally  liable.  Hawthorne  v.  Calef,  2  WaU.  10  ;  see  Conant  v. 
Fow  Bchaick,  24  Barb.  87;  Read  v.  Frankfort  Bank,  23  Me.  318;  Coffin  v.  Rich, 
45  Me.  507 ;  Syracuse  Bank  v.  Davis,  16  Barb.  188. 


6  Stew.]  FEBRUARY  TERM,  1881.  437 

Newark  Savings  Institution  v.  Forman. 


The  Chancellor. 

This  cause  and  two  others  (foreclosure  suits)  staud  as  on  de- 
murrer, by  order  of  the  court,  upon  the  claim  aud  prayer  of  the 
bills  for  a  personal  decree  for  deficiency,  which  is  sought,  in  two 
of  them,  against  a  person  who  assigned  to  the  complainant  the 
bond  which  the  mortgage  was  made  to  secure,  guaranteeing  pay- 
ment. In  the  other  it  is  prayed  against  the  obligor  in  the  bond, 
to  secure  payment  of  which  the  mortgage  was  made,  in  tiie 
two  cases  first  mentioned,  the  mortgages  were  given  in  1873,  and 
in  the  last  the  mortgage  was  given  in  1875.  The  question  is 
whetJier,  in  view  of  the  provision  of  the  first  section  of  the  act 
"  concerning  proceedings  on  bonds  and  mortgages  given  for  the 
same  indebtedness,  and  the  foreclosure  and  sale  of  the  mortgaged 
premises  thereunder"  (P.  L.  of  1S80  p.  '265),  this  court  has  juris- 
diction to  make  such  decree.     That  section  is  as  follows : 

"  In  all  proceedings  to  foreclose  mortgages  hereafter  commenced,  no  decree 
shall  be  rendered  therein  for  any  balance  of  money  which  may  be  due  com- 
plainant over  and  above  the  proceeds  of  the  sale  or  sales  of  the  mortgaged 
property,  and  no  execution  shall  issue  for  the  collection  of  such  balance  under 
such  foreclosure  proceedings." 

Rescinding  a  summary  remedy  against  a  stockholder  in  default  as  to  pay- 
ments on  his  stock.     North  East  Alabama  B.  R.  Case,  37  Ala.  679. 

Repealing  a  resort  to  a  mandamus.  State  v.  Gaillard,  11  S.  C.  309,  affirmed 
in  U.  S.  S.  C,  March  2d,  ISSO  ;  or  a  scire  facias,  Parker  v.  Sharnonhouse,  1  Phil. 
(jV.  C.)  209 ;  or  an  action  of  debt  on  a  judgment  after  execution  returned, 
Grosvenor  v.  Chesley,  Ji8  Me.  369  ;  Dennis  v.  Arnold,  12  Mete.  44^. 

Altering,  by  general  statute,  the  venue  of  an  action  against  an  insurance  com- 
pany for  loss  under  a  policy.  Howard  v.  Kentucky  Ins.  Co.,  13  B.  Mon.  2S2 ; 
Sanders  v.  Hillsborough  Co.,  44  N.  H.  238 ;  see  Gut  v.  State,  9  Wall.  33 ;  Osbom 
X.  State,  24  Ark.  639. 

Repealing  an  act  allowing  a  landlord  to  claim  rent  out  of  the  proceeds  of 
property  seized  on  execution  on  the  demised  premises.  Stocking  v.  Hunt,  3 
Denio  274;  see  Barry  v.  McGrade,  14  Minn.  163. 

Providing  that  equity  alone  shall  have  jurisdiction  of  suits  to  recover  prop- 
erly which  had  been  set  apart  under  the  homestead  laws  and  subsequently 
sold.    McLellan  v.  Weston,  59  Ga.  SS3. 

Preventing  a  judgment  being  obtained  as  soon  as  it  could  have  been  by  the 
remedy  in  force  when  the  debt  was  contracted.     Knoup  v.  Piqua  Bank,  1  Ohio 


438  CASES  IN  CHANCERY.  [33  Eq. 

Newark  Savings  Institution  v.  Forman. 

The  next  section  is  as  follows : 

"  In  all  cases  where  a  bond  and  mortgage  has  or  mav  hereafter  be  given  for 
the  same  debt,  it  shall  be  lawful  to  proceed  first  to  foreclose  the  mortgage,  and 
if,  at  the  sale  of  tlie  mortgaged  premises  under  said  foreclosure  proceedings, 
the  said  premises  should  not  sell  for  a  sum  suflBcient  to  satisfy  said  debt,  interest 
and  costs,  then  and  in  such  case  it  shall  be  lawful  to  proceed  on  the  bond  for 
the  deficiency  ;  and  that  in  all  suits  on  said  bond,  judgment  shall  be  rendered 
and  execution  issue  only  for  the  balance  of  debt  and  costs  of  suit." 

The  third  section  is  as  follows : 

"If,  after  the  foreclosure  and  sale  of  any  mortgaged  premises,  the  person 
who  is  entitled  to  the  debt  shall  recover  a  judgment  in  a  suit  on  said  bond  for 
any  balance  of  debt,  such  recovery  shall  open  the  foreclosure  and  sale  of  said 
premises,  and  the  owner  of  the  property  at  the  time  of  said  foreclosure  and 
sale  may  redeem  the  property  by  paying  the  full  amount  of  money  for  which 
the  decree  was  rendered,  with  interest  to  be  computed  from  the  date  of  said 
decree,  and  all  cost  of  the  proceedings  on  tlie  bond ;  provided,  that  a  suit 
for  redemption  is  brought  within  six  months  after  the  entry  of  such  judgment 
for  the  balance  of  the  debt." 

I  have  quoted  the  second  and  third  sections  because  it  is  insisted 
bv  the  complainant's  counsel  that  the  court  should,  in  construing 

St.  60S ;  Johnson  v.  Higgins,  4  Mete.  (Ky.)  566;  Coolei/s  Const.  lAm.  {4th  ed.) 
*287 ;  Woodz  v,  Buie,  5  How.  {Miss.)  285. 

Providing  punishment  for  a  crime,  of  a  milder  form.  Stale  v.  3IcDonald,  20 
Minn.  136;  Stale  v.  Kent,  65  N.  C.  311;  Cooky's  Const.  Lim.  {4th  ed.)  ^267; 
see  Elliott  v.  Elliott,  38  Md.  357. 

Rescinding  a  mortgagee's  right  to  occupy  lands  during  the  period  allowed 
for  redemption  after  foreclosure.  Berthold  v.  Foi,  IS  Minn.  501 ;  see  Thome 
V.  San  Francisco,  4  Col.  127 ;  Everson  v.  Shorter,  9  Ala.  713 ;  Maynes  v.  Moore, 
16  Ind.  116. 

Reducing  the  time  limited  for  an  appeal.  Smith  v.  Packard,  12  Wis.  571 ; 
fee  Burch  v.  Newbury,  10  JV.  Y.  374 ;  Palmer's  Case,  40  N.  Y.  561 ;  Jacquins  v. 
Com.,  9  Cash.  279;  Willard  v.  Harvey,  24  N.  H.  344;  Hauser  v.  Hoffman,  32 
Mo.  334;  Sayrea  v.  Com.,  88  Pa.  St.  291,  19  Alb.  L.  J.  S3;  Atkinson  v.  Dun- 
lap,  50  Me.  Ill ;  Beaupree  v.  Hoerr,  13  3linn.  366  ;  Griffin  v.  Cunningham,  20 
Gratt.  52 ;  or,  the  right  to  redeem  a  mortgage,  Butler  v.  Palmer,  1  Hill  324; 
Holland  v.  Dickerson,  41  Iowa  367 ;  see  Cargill  v.  Power,  1  Mich.  369. 

Reducing  the  notice  of  sale  under  a  mortgage.  Webb  v.  Moore,  25  Ind,  4; 
Cook  V.  Gray,  2  Houst.  455  ;  Ashudot  B.  R.  v.  Eliot,  52  N.  H.  387. 


6  Stew.]  FEBRUARY  TERM,  1881.  439 

Newark  Savings  Institution  v.  Forman. 

the  first,  take  into  consideration  the  constitutional  objection  to 
which,  he  insists,  the  second  and  third  are  liable,  and  consider 
the  three  together.  Bat  the  first  is  clearly  independent  of  the 
other  two.  It  is  a  simple  enactment,  intended  to  deprive  the 
court  of  the  power  to  enter  a  personal  decree  for  deficiency  in  a 
foreclosure  suit,  and  it  may  therefore  stand  alone.  It  is  urged 
that  that  section  cannot,  without  a  violation  of  the  complainant's 
constitutional  rights,  be  applied  to  these  suits,  inasmuch  as  the 
bonds  and  mortgages  were  given  prior  to  the  passage  of  the  act, 
and  the  constitution  prohibits  the  legislature  from  passing  any 
law  depriving  a  party  of  any  remedy  for  enforcing  a  contract, 
which  existed  when  the  contract  was  made. 

Up  to  the  passage  of  the  act  of  1866  {Rev.  p.  118  §  76),  the 
fifth  section  of  which  provides  that  it  shall  be  lawful  for  the 
chancellor,  in  any  suit  for  the  foreclosure  or  sale  of  mortgaged 
premises,  to  decree  the  payment  of  any  excess  of  the  mortgage 
debt  above  the  net  proceeds  of  the  sales  by  any  of  the  parties  to 
such  suit  who  may  be  liable,  either  at  law  or  in  equity,  for  the 
payment  of  the  same,  provided  there  be  a  prayer  to  that  effect 

Taking  from  a  court  of  law,  by  special  statute,  the  determination  of  matters 
of  law  in  a  particular  case.     Bank  of  Ky.  v.  Schuylkill  Bank,  1  Pars.  180. 

Taking  away  the  remedy  in  equity  against  the  representatives  of  a  deceased 
partner  when  the  survivor  is  insolvent,  and  transferring  it  to  law.  Bartlett  v. 
Lang,  2  Ala.  401;  Paschal  v.  Whitselt,  11  Ala.  472. 

Taking  away  a  resort  to  equity  to  remove  the  apparent  lien  of  a  void  assess- 
ment.    Lennon  v.  New  York,  55  N.  Y.  361. 

Giving  a  court  of  law  jurisdiction  where  a  person  is  a  partner  in  two  firms, 
one  of  which  is  plaintiff  and  the  other  defendant  in  a  suit  at  law.  Hepburn 
V.  Qurts,  7  Watts  300. 

Providing  that  only  an  action  on  the  case  could  be  maintained  to  recover 
damages  for  the  escape  of  a  debtor.     Thayer  v.  Seavey,  11  Me.  284. 

Giving  courts  of  quarter  sessions  exclusive  jurisdiction  over  petit  larceny 
committed  a  second  time.     People  v.  Bawson,  61  Barb.  619. 

Giving  the  court  of  common  pleas  exclusive  jurisdiction  over  naturaliza- 
tions.    Beavin's  Petition,  33  X.  H.  89. 

Whether  a  statute  providing  that  no  action  can  be  maintained  for  liquors 
sold,  is  constitutional.  Reynolds  v.  Geary,  26  Conn.  179  ;  Opinion  of  JuitMes, 
85  N.  H.  539;  Lord  v.  Chadbourne,  42  Me.  429;  Beebe  v.  State,  6  Ind.  501; 
Cooky's  Const.  Lim.  {4th  ed.)  *583. 

Whether  a  lien  law  can  be  repealed  so  as  to  divest  liens  already  acquired,  see 


440  CASES  IN  CHANCERY.  [33  Eq. 

Newark  Savings  Institution  v.  Forman. 

in  the  bill  of  complaint,  no  i)ersonal  decree  for  deficiency  was 
made  in  any  foreclosure  suit  where  there  was  a  remedy  at  law, 
liut  only  when  there  was  no  remedy  except  by  means  of  equi- 
table subrogation.  And  it  is  believed  that  the  first  suit  in 
which  a  personal  decree  for  deficiency  was  made  in  this  court, 
even  on  that  ground,  was  the  case  of  Klapworth  v.  Dresslei',  2 
Beas.  62,  decided  in  1860.  Since  the  passage  of  the  act  of  1866, 
the  court  has  exercised  jurisdiction  in  accordance  with  the  above 
provision  of  that  statute.  Still,  during  all  that  time  the  rem- 
edy at  law  has  existed,  as  it  still  does,  against  the  obligor  of  the 
bond  secured  by  the  mortgage,  and  against  any  guarantor  of  the 
bond.  So  far,  therefore,  as  such  persons  were  concerned,  the 
remedy  given  in  equity  was  cumulative  merely,  and  the  first  sec- 
tion of  the  act  of  1880  is  a  mere  repealer  of  the  fifth  section  of 
the  act  of  1866.  The  taking  away  of  the  remedy  in  equity  in 
cases  where  a  complete  remedy  at  law  of  the  like  sort  exists  (as 
where  the  decree  is  prayed  against  the  obligor  in  the  bond  or  a 
guarantor),  obviously  only  deprives  the  party  of  one  of  two 
remedies  of  a  like  character.  It  does  not  deprive  him  of  any 
remedy  more  effective  than  the  legal  one ;  for  the  proceeding  to 
collect  the  money  after  the  decree  for  deficiency  is  the  same  as 
the  remedy  on  a  judgment  at  law.     It  does  not  deprive  him  of  a 

Streubel  v.  Milwaukee  R.  B.,  12  Wis.  67 ;  Wahash  Canal  Co.  v.  Beers,  2  Black 
44S;  Weaver  v.  Sells,  10  Kan.  609  ;  Doellner  v.  Bogers,  16  Mo.  SJ^O  ;  Hall  v. 
Bunte,,20  Ind.  S04;  Frost  v.  Ilsley,  54  Me.  345 ;  Evans  v.  Montgomery,  4  Watts 
&  Serg.  218;  Templeton  v.  Home,  82  Bl.  491;  Martin  v.  Hewitt,  44  Ala.  418  ; 
Brooks  V.  Memphis,  3  Cent.  L.  J.  356 ;  Bailey  v.  Mason,  4  Minn.  546;  Bangor 
V.  Coding,  35  Me.  73;  Watson  v.  N.  Y.  C.  R.  B.,  47  N.  Y.  157;  Christman  v. 
Charleville,  36  Mo.  610  ;  Parmort  v.  Tucker  Co.,  2  Col.  471 ;  Allen  v.  Hain,  63 
Me.  532  ;  Coddington  v.  Beebe,  5  Dutch.  550. 

Whether  execution  can  be  stayed  or  suspended,  conditionally,  on  judgments 
rendered  on  pre-existing  contracts,  Branson  v.  Kimie,  1  How.  311 ;  McCracken 
V.  Hay  ward,  2  How.  60S  ;  Moore  v.  Fowler,  Hempst.  536  ;  Huntzingerv.  Brock, 
3  Grant's  Cas.  243;  Williams  v.  Waldo,  4  Bl  264;  Smith  v.  Bryan,  34  lit.  364; 
Farnsworth  v.  Vance,  2  Coldw.  108  ;  Chadwick  v.  Moore,  8  Watts  <fe  Serg.  49  ;  Lou- 
isiana V.  New  Orleans  (  U.  S.  S.  C),  22  Alb.  L.  J.  496  ;  Edwards  v.  Kearzey,  74 
N.  C.  241,  96  U.  S.  595  ;  Webster  v.  Rose,  6  Heisk.  93  ;  Cooley's  Const.  Lira.  {4th 
ed.)  *292;  Kentuck-y  v.  Williams,  22  Alb.  L.  J.  457 ;  Davidson  v.  Wiley,  31  Ala. 
452;  see,  also,  7  Cent.  L.  J.  363;  Coolers  Const.  Lim.  *292,  *S61.—Rep. 


6  Stew.]  FEBRUARY  TERM,  1881.  441 

Ked  Jacket  Tribe  v.  Hoff. 

remedy  more  speedy  than  the  legal  one,  for  the  decree  for  defi- 
ciency is  merely  a  contingent  one  until  after  the  sale  of  the 
mortgaged  premises  shall  have  taken  place,  and  until  then  con- 
stitutes no  lien  on  the. defendant's  land.  Bell  v.  Gilmore,  10  C. 
E.  Gr.  10^.  The  remedy  in  equity  may  be  more  economical. 
The  taking  away  of  the  remedy  in  equity  does  not  deprive  the 
party  of  any  resort  to  person  on  property  for  the  collection  of 
his  debt.  It  does  not  even,  as  before  stated,  compel  him  to  have 
recourse  to  a  less  rapid  proceeding.  The  legislature  may  make 
laws  which  incidentally  affect  the  pursuit  of  remedies  for  enforc- 
ing existing  contracts ;  as,  for  instance,  such  as  regulate  the  ad- 
mission of  evidence,  the  course  of  practice  in  the  courts,  the 
mode  of  conducting  sales  under  judgments  and  executions,  and 
altering  the  forms  of  action,  or  prescribing  periods  for  the  lim- 
itation of  actions  within  a  reasonable  time.  Rader  v.  Road 
District,  7  Vr.  '273.  The  act  under  consideration  leaves  the 
complainant  a  substantial  remedy  (of  the  same  kind  as  that  taken 
away),  according  to  the  course  of  justice,  as  it  existed  when  the 
contract  was  made  a  remedy,  which  is  not  only  of  the  same  sort, 
but  is  even  more  efficacious  than  that  which  it  takes  away.  It 
has  only  taken  away  one  of  two  remedies  of  a  like  character,  one 
at  law  and  the  other  in  equity,  and  that  is  no  contravention  of 
the  complainant's  constitutional  right. 


Red  Jacket  Tribe,  No.  43,  of  the  Improved  Order  of 

Red  Men 

V. 

Hezekiah  W.  Hoff  et  al. 

On  a  bill  filed  for  the  reformation  of  the  bond  of  the  treasurer  of  a  society, 
because  seals  were  omitted  tlierefrom,  and  for  a  decree  fixing  the  amount  due 
thereon  from  the  treasurer  and  his  surety — Held,  that  while  the  bond  could  be 
reformed  as  to  the  seals,  no  decree  could  be  granted  for  the  amount  due  there- 
on, because  the  remedy  at  law  was  adequate,  and  a  demurrer  on  the  latter 
ground  was  sustainable. 


442  CASES  IN  CHANCERY.  [33  Eq. 

Eed  Jacket  Tribe  v.  Hoff. 
Bill  for  relief.     On  general  demurrer. 
Mr.  0.  P.  Chamberlxn,  for  demurrants. 
3Ir.  W.  F.  Herr,  for  complainants. 

The  Chancellor. 

The  bill  is  filed  for  two  purposes :  to  supply  the  defect  in  a 
bond  of  want  of  seals,  omitted  through  accident  or  mistake,  and 
to  obtain  a  deci'ee  in  this  court  for  the  amount  due  on  the  bond. 
The  bond  was  given  by  the  defendants,  Hoff  as  principal  and 
Wilson  as  surety,  to  the  complainants,  and  is  conditioned  for  the 
faithful  performance,  by  the  principal,  of  his  duties  as  treasurer 
of  the  complainants.  Wilson  files  a  general  demurrer.  The 
bill  is  clearly  maintainable  for  the  first-mentioned  object.  It 
appears  by  the  instrument  itself,  which  is  set  out  in  the  bill,  that 
it  was  intended  to  be  a  sealed  instrument,  and  the  complainants 
are  in  equity  entitled  to  have  the  defect  remedied,  and  the  want 
of  seals  supplied.  Montville  v.  Haughion,  7  Conn.  54^;  Rut- 
land V.  Paige,  24-  Vt.  181.  But  they  are  not  entitled  to  the  other 
relief — a  decree  on  the  bond.  Their  remedy  on  the  bond  is  a 
legal  one,  and  there  is  no  ground  whatever  laid  in  the  bill  for 
equitable  relief  on  that  score.  Though  reformation  of  a  con- 
tract, and  specific  performance,  or  reformation  of  a  mortgage  and 
foreclosure,  or  rectification  of  a  bond  and  an  account,  may  be 
sought  in  the  same  bill,  and  relief  obtained,  the  reason  is  that 
the  remedies  are  not  only  both  equitable,  but  the  former  (the 
reformation)  is  sought  with  a  view  to  the  latter  (the  specific  per- 
formance, or  foreclosure,  or  account),  which  is  the  principal  object 
of  the  suit,  and  there  is  a  manifest  propriety  in  allowing  the 
joinder  in  such  cases.  But  in  this  case  the  bill  seeks  an  equit- 
able remedy  and  another  which  is  merely  legal.  It  has  been  said 
that  a  bill  is  not  multifarious  where  it  sets  up  one  sufficient 
ground  for  equitable  relief,  and  another  claim  which,  on  its  face, 
contains  no  equity  which  can  entitle  the  complainant  to  the 
interposition  of  the  court,  either  for  relief  or  discovery.  Varicli 
v.  Smith,  5  Paige  136. 


6  Stew.]  FEBRUARY  TERM,  1881.  443 

Eed  Jacket  Tribe  v.  Hoff. 

"When,"  says  Judge  Story,  "a  bill  contains  two  distinct  subject-matters, 
wholly  disconnected  from  each  other,  if  one  of  them  be  clearly  without  the 
jurisdiction  of  a  court  of  equity  for  redress,  it  seems  that  the  court  wiU  treat 
the  bill  as  if  it  were  single,  and  proceed  with  the  other  matter  on  which  it  has 
jurisdiction,  as  if  it  constituted  the  sole  object  of  the  bill." — Story's  Eq.  PI. 

Though  the  subject-matters  of  this  bill,  the  rectification  of  the 
bond  and  the  assessment  of  the  damages  thereon,  are  connected 
together,  yet  the  latter  relief  is  one  which  the  court,  in  the  ordi- 
nary exercise  of  its  authority,  cannot  properly  grant.  The  proper 
forum  for  such  relief  is  a  court  of  law.  Berry  v.  Van  Winkle,  1 
Gr.  Ch.  269  ;  Iszard  v.  May's  Landing  Co.,  4-  Stew.  Eq.  511 ; 
Palys  V.  Jewett,  6  Stew.  Eq.  302. 

"To  justify  a  court  of  equity  in  granting  relief  as  consequent  upon  dis- 
covery," says  Judge  Story,  "  it  seems  necessary  that  the  relief  should  be  of 
such  a  nature  as  a  court  of  equity  may  properly  grant,  in  the  ordinary  exercise 
of  its  authority.  If,  therefore,  the  proper  relief  be  by  an  award  of  damages, 
which  can  alone  be  ascertained  by  a  jury,  there  may  be  a  strong  reason  for 
declining  the  exercise  of  the  jurisdiction,  since  it  is  the  appropriate  function 
of  a  court  of  law  to  superintend  such  trials.  And  in  many  other  cases  where 
a  question  arises,  purely  of  matters  of  fact,  fit  to  be  tried  by  a  jury,  and  tlie 
relief  is  dependent  upon  that  question,  there  is  equal  reason  that  the  jurisdic- 
tion for  relief  should  be  altogether  declined ;  or  at  all  events,  that  if  the  bill 
is  retained,  a  trial  at  law  should  be  directed  by  the  court,  and  the  relief 
granted  or  withheld,  according  to  the  final  issue  of  the  trial." — 1  Story's  Eq. 
Jur.  I  72. 

The  bill  is  therefore  bad,  so  far  as  the  purely  legal  claim  is 
concerned.  In  Varick  v.  Smith,  cited  above,  it  was  said  that  the 
proper  course  for  the  defendant,  in  such  a  case  as  this,  to  pursue, 
is  to  answer  as  to  the  equitable  cause  of  suit,  and  demur  to  the 
legal  claim  for  want  of  equity,  or  that  he  may  answer  as  to  both, 
and  make  the  objection  as  to  the  want  of  equity  in  the  legal  claim 
at  the  hearing.  I  think  the  defendants  should  not  be  required  to 
answer  so  much  of  the  bill  under  consideration  as  concerns  the 
merely  legal  relief  which  it  seeks.  The  demurrer  will  therefore 
be  sustained. 


444  CASES  IN  CHANCERY.  [33  Eq. 

O'Neill  V.  Clark. 

John  P.  O'Neill,  receiver  <&c., 

V. 

Amos  Claek,  jun.,  et  al. 

1.  Deed  reformed  by  striking  out  an  assumption  of  a  mortgage  inserted 
through  the  mistake  of  the  scrivener,  and  accepted  by  the  grantee  in  ignorance 
thereof. 

2.  A  bona  fide  release  of  an  assumption  of  a  mortgage  was  verbally  agreed 
upon  before  suit  brought  to  foreclose  the  mortgage,  but  the  release  was  not 
executed  until  after  suit  brought.  Without  knowledge  of  the  existence  of  the 
suit,  it  was  executed  and  the  consideration  paid. — Hdd,  to  discharge  the  as- 
sumption. 

Bill  to  foreclose  and  bill  in  the  nature  of  a  cross-bill.  On 
final  hearing  on  pleadings  and  proofs. 

Mr.  T.  A.  Jobs,  for  complainant  in  original  bill. 

Mr.  W.  P.  Wilson,  for  Amos  Clark,  Jr.,  and  for  William  A. 
Clark,  complainant  in  cross-bill. 

The  Chancellor. 

The  controversy  between  the  parties  is  in  reference  to  the 
liability  of  Amos  Clark,  jun.,  and  William  A.  Clark,  his  son 
and  grantee,  to  a  personal  decree  for  deficiency.  The  suit  is  for 
foreclosure  and  sale  of  mortgaged  premises.  The  complainant 
is  the  receiver  (appointed  by  this  court)  of  the  Continental  Life 
Insurance  Company.  The  mortgage  in  suit  was  given  to  that 
company  June  30th,  1871,  by  Josiah  Oakes  and  Susan  A.,  his 
wife,  to  secure  the  payment  of  $12,000  with  interest,  according 
to  Oakes's  bond  to  the  company.  The  mortgaged  premises  are 
in  the  city  of  Elizabeth.  On  January  10th,  1872,  Oakes  and  his 
wife  conveyed  the  property  to  Amos  Clurk,  jun.,  subject  to  the 
mortgage,  the  payment  of  which  he  thereby  assumed ;  the  amount 
of  it  being  allowed  to  him  as  so  much  of  the  consideration  of  the 


6  Stew.]  FEBRUARY  TERM,  1881.  445 

O'Neill  V.  Clark. 

conveyance.  On  December  17th,  1877,  Clark  and  his  wife  con- 
veyed the  premises  to  their  son,  William  A.  Clark,  subject  to  the 
mortffaffe.  The  deed  from  them  to  him  contained  a  declaration 
of  the  assumption  of  the  payment  of  the  mortgage  by  him  as  a 
part  of  the  consideration  of  the  conveyance.  Though  that  deed 
expressed  a  consideration  of  $12,500,  it  was  in  fact  without  con- 
sideration, and  merely  voluntary,  a  mere  deed  of  gift.  It  was 
delivered  as  a  wedding  present  to  William  on  the  occasion  of  his 
marriage.  The  complainant's  bill  was  filed  April  2d,  1879. 
By  it  he  prays  a  personal  decree  for  deficiency  against  both 
Amos  and  William  Clark.  The  subpoena  ad  respondendum  was 
issued  on  the  bill  on  the  15th  of  that  month.  By  deed  dated 
on  the  10th  of  that  month,  eight  days  after  the  filing  of  the  bill, 
and  five  days  before  the  issuing  of  the  subpoena  thereon,  Susan 
A.  Oakes,  executrix  of  the  will  of  Josiah  Oakes,  the  mortgagor 
(who  had  previously  died),  for  the  consideration  of  $500  paid  to 
her  by  Amos  Clark,  and  the  release  of  her  and  Oakes's  estate 
from  liability  to  him  upon  a  bond  and  mortgage  for  $10,000  and 
interest,  given  by  Oakes  to  him,  released  him  from  all  liability 
on  the  assumption  contained  in  the  deed  from  Oakes  and  his 
wife  to  him  for  the  premises  described  in  the  complainant's  mort- 
gage. It  will  be  remarked  that  the  release  was  given  after  this 
suit  was  begun,  but  before  the  subpoena  to  answer  was  issued. 
Amos  Clark,  by  his  answer,  sets  up  the'  release  as  a  defence 
against  the  claim  of  personal  liability  made  against  him,  and  al- 
leges that  the  release,  though  not  delivered  until  the  10th  of 
April,  was,  in  fact,  verbally  agreed  upon  in  March  preceding. 
William  Clai'k  filed  his  answer,  alleo-ino-  that  the  clause  of  as- 
sumption  contained  in  the  deed  to  him  was  inserted  by  mistake 
of  the  person  who  drew  the  deed,  and  that  his  father  neither 
directed  nor  intended  that  any  such  clause  should  be  in  the  deed. 
He  further  sets  up  the  release  to  his  father,  and  insists  that  even 
if  the  assumption  in  his  deed  were  such  as  equity  would  permit 
to  stand,  he  would  not  be  liable  to  the  complainant  thereunder, 
because  of  the  release  by  which  his  grantor  was  dischaii:  h1  from 
all  liability  to  indemnify  Oakes's  estate  against  the  mortgage. 
After  answering,  he  filed  a  bill  evidently  designed  as  a  cross-bill, 


446  CASES  IX  CHANCERY.  [33  Eq. 

O'Neill  V.  Clark. 

in  this  suit,  but  which  lacks  most  of  the  characteristics  of  such  a 
pleading,  and  appears  rather  to  be  an  original  bill.  Its  object 
is  relief  against  the  assumption  contained  in  the  deed  to  him, 
and  it  prays  a  rectification  of  that  deed  by  expunging  the  clause. 
As  before  remarked,  it  was  designed  as  a  cross-bill,  but  if  in- 
tended as  an  original  bill  it  is  of  such  a  character  that,  on 
motion,  the  court  would  have  ordered  that  it  stand  as  a  cross- 
bill so  far  as  the  complainant  therein  was  concerned.  The  issue 
which  it  tenders  has  been  accepted  by  the  complainant  in  the  fore- 
closure suit,  and  the  controversy  is  before  me  on  its  merits ;  and 
if  any  amendments  were  necessary  to  an  effectual  and  conclusive 
disposition  of  the  question  which  it  raises,  they  would,  under 
the  circumstances,  be  made. 

The  proof  is  clear  that  the  assumption  clause  in  the  deed  of 
William  was  inserted  by  the  draughtsman  without  any  direction 
to  do  so  from  the  parties,  or  any  of  them,  and  contrary  to  the  in- 
tention of  the  grantors.  It  further  appears  tliat  the  deed  was 
delivered  merely  as  a  gift  (a  wedding  present)  of  the  property 
subject  to  the  mortgage,  and  without  any  consideration  other  than 
natural  affection.  Also  that  the  grantee  was  not  aware  until 
after  the  beginning  of  this  suit  that  the  clause  was  in  the  deed ; 
and  further,  that  had  he  known  it  was  there  when  the  deed  was 
tendered  to  him,  he  would  not  have  accepted  the  deed  with  the 
clause  in  it ;  and  that  had  he  become  aware,  after  he  received  it 
and  before  suit  brought,  that  it  was  in  the  deed,  he  would  have 
had  it  expunged.  He  is  clearly  entitled  to  the  relief  which  he 
seeks,  but  of  course  no  costs  will  be  awarded  to  him. 

As  to  the  defence  of  Amos  Clark  under  the  release  from  the 
executrix  of  Oakes.  There  is  no  evidence  of  any  want  of  good 
faith  in  that  matter,  nor  is  any  bad  feith  even  alleged.  The 
proof  is  that  the  release  and  its  terms  were  agreed  upon  before 
the  original  bill  in  this  cause  was  filed.  Moreover,  there  is  no 
evidence  that  the  parties  to  the  release,  or  either  of  them,  had, 
when  the  release  was  delivered,  any  knowledge  that  this  suit 
had  been  or  was  about  to  be  instituted.  No  subpoena  had  been 
issued,  nor,  as  far  as  appears,  had  any  notice  of  any  kind  been 
given  them  that  the  suit  had  been  instituted  or  was  about  to  be 


6  Stew.]  FEBRUARY  TERM,  1881.  447 

Emery  i'.  Gordon. 

commenced.  The  filing  of  the  bill  was  not  of  itself  notice  of  the 
beginning  of  the  suit.  Haughwout  v.  Murphy,  7  C.  E.  Gr.  531. 
In  good  faith,  and  with  no  actual  knowledge  of  the  suit,  Clark, 
in  pursuance  of  the  agreement  made  in  March,  paid  Mrs.  Oakes 
$500,  and  released  her  and  her  husband's  estate  from  liability 
on  his  mortgage  for  $10,000  and  interest.  It  is  urged,  on  the 
part  of  the  complainant  in  this  suit,  that  there  is  no  proof  that 
Mrs.  Oakes  was  the  legal  representative  of  her  husband.  But 
no  proof  on  thai  head  was  necessary,  for  the  bill  itself  states  the 
death  of  Josiah  Oakes,  and  that  his  widow,  Susan  A.  Oakes,  is  the 
executrix  of  his  last  will  aud  testament,  and  his  sole  legatee, 
and  prays  a  decree  for  deficiency  against  her  to  the  extent  of 
assets  received  and  not  otherwise  legally  appropriated.  There 
will  be  no  decree  for  deficiency  against  either  of  the  Clarks. 


Anna  C.  Emery 

V. 

Thomas  Gordon  et  ux. 


A  mortgage,  given  in  1875,  payable  in  five  years,  was  assigned  by  the  mort- 
gagee to  complainant  January  5th,  1876,  and  the  assignment  recorded  Febru- 
ary 16th,  1876.  The  bond  and  mortgage  and  assignment  all  remained  in  the 
hands  of  the  mortgagee,  as  agent  of  the  assignee,  for  the  collection  of  the 
interest,  until  November  1st,  1877,  during  which  time  the  interest  and  part 
of  the  principal  were  paid  by  the  mortgagor  to  the  mortgagee,  who  paid  over 
the  interest  to  the  complainant,  but  none  of  the  principal.  After  November 
Ist,  1877,  similar  payments  were  made  to  the  mortgagee,  who  again  paid  over 
the  interest,  but  not  the  principal. — Held,  that  the  payments  of  the  principal 
made  to  the  mortgagee  after  the  assignment,  and  while  the  instruments  re- 
mained in  his  possession,  must  be  credited  on  the  mortgage ;  aliter,  as  to  such 
payments,  after  they  had  been  withdrawn  from  him  by  the  complainant. 


Bill  to  foreclose.     On  final  hearing  on  pleadings  and  proofs. 


448  CASES  IX  CHANCERY.  [33  Eq. 

Emery  v.  Gordon. 
Mr.  D.  J.  Pancoast,  for  complainant. 
3Ir.  A.  Hugg,  for  defendants. 

The  Chancellor. 

The  defendants,  Gordon  and  wife,  gave  their  mortgage,  dated 
July  14th,  1875,  on  property  in  Camden,  to  Barton  Lowe,  ex- 
ecutor, to  secure  the  payment  of  Gordon's  bond  to  Lowe  of  that 
date,  conditioned  for  the  payment  of  §3,500  in  five  years,  with 
lawful  interest,  payable  semi-annually,  with  proviso  that  on 
thirty  days'  default  in  the  payment  of  the  interest,  the  principal 
should  become  due.  On  the  5th  of  January,  1876,  Lowe,  by 
deed  of  assignment,  assigned  the  bond  and  mortgage  to  the  com- 
plainant. The  assignment  was  duly  recorded  on  the  16th  of 
February,  1876.  The  bond,  mortgage  and  assignment  all  re- 
mained in  Lowe's  hands  up  to  the  1st  of  November,  1877,  when 
they  were  withdrawn  by  the  complainant,  who  took  them  into 
her  own  possession,  and  they  were  never  afterwards,  nor  was  any 
of  them,  returned  to  him.  Gordon,  while  they  were  in  Lowe's 
hands,  paid  the  interest  to  him,  and  also  $1,600  of  the  principal, 
and  paid  him  the  interest  up  to  January  14th,  1879,  and  §900,  also 
on  account  of  principal,  afterwards.  Lowe  paid  the  interest  to  the 
complainant,  but  never  paid  her  any  of  the  principal  which  he 
so  received.  He  received  the  principal  without  her  authority  or 
knowledge,  and  never  informed  her  that  he  had  received  it,  but, 
on  the  other  hand,  paid  over  to  her  interest  on  the  whole  amount 
of  the  mortgage,  not  only  up  to  November,  1877,  but  afterwards, 
and  up  to  and  including  January  14th,  1879. 

In  paying  her  the  interest  after  the  papers  were  withdrawn  from 
him  he  alleges  that  he  did  so  as  Gordon's  agent.  He  left  the 
state  in  May,  1879.  "When,  in  1878,  the  complainant  learned 
from  Gordon  that  he  had  made  payments  on  account  of  the  prin- 
cipal to  Lowe,  and  spoke  to  the  latter  about  it,  he  denied  that 
Gordon  had  done  so,  but  said  that  the  alleged  payments  were 
loans  from  Gordon  to  him,  and  not  payments  on  account  of  the 
mortgage.  The  comjJainant  early  in  January,  1878,  sent 
througli  the  post-office  to  Gordon  a  notification  that  no  one  was 


6  Stew.]  FEBRUARY  TERM,  1881.  449 


Eruery  v.  Gordon. 


authorized  to  receive  tlie  principal  or  interest  on  the  mortgage  for 
her,  and  thereby  required  him  to  pay  her  in  person.  Both  he 
and  she  resided  in  Camden.  He  swears  that  he  did  not,  to  his 
knowledge,  receive  the  letter,  and  there  is  no  proof  that  it  came 
to  his  hands.  On  the  8th  of  July,  in  the  same  year,  she  again 
wrote  to  hiin,  reminding  him  that  the  interest  would  become  due 
on  the  14th  of  that  month,  and  requesting  him  to  pay  it  to  her 
in  person,  or,  in  case  of -her  absence  from  home  when  he  should  call 
for  the  purpose,  to  her  landlady.  He  received  that  letter.  On  the 
10th  of  December  following  she  again  wrote  to  him,  asking  for  a 
payment  (to  be  made  the  next  January,  though  it  would  not  then 
be  due)  of  $1,000  on  account  of  the  principal,  and  reminding  him 
that  the  interest  would  fall  due  on  the  14th  of  January.  She 
added  that  Judge  Pancoast  would  collect  her  interest,  and  that 
she  had  put  her  business  into  his  hands.  This  letter,  also,  Gor- 
don admits  that  he  received.  He  did  not  reply  to  it,  however, 
until  the  6th  of  January,  1879,  nearly  a  month  after  it  came  to 
his  hands,  and  he  then  merely  said,  referring  to  her  request  for 
the  payment  on  account  of  principal,  that  he  did  not  owe  so 
much  on  the  mortgage  as  she  asked  him  for,  and  that  if  she 
wanted  to  know  the  particulars  she  should  call  on  him  before  the 
14th  of  January.  It  appears  from  his  testimony  that  on  receiv- 
ing the  two  letters  from  her  he  called  on  Lowe  and  showed  them 
to  him,  and  the  latter  told  him  to  pay  no  attention  to  them,  add- 
ing that  he  (Lowe)  was  "the  agent  for  the  parties."  Gordon 
says  that  when  he  made  the  payments  to  Lowe  he  considered 
Lowe  the  owner  of  the  mortgage,  and  indeed  the  receipts  given 
to  him  by  Lowe  after  the  assignment  were  not  given  as  agent  or 
attorney,  but  in  Lowe's  own  name — in  one  instance  as  executor. 
From  the  time  when  the  assignment  was  left  for  record  Gordon 
was  chargeable  with  notice  that  the  complainant  was  the  owner 
of  the  mortgage  {Rev.  708  §§  32,  Slf),  and  his  payments  to  Lowe 
after  that  time,  on  account  of  it,  could  only  be  allowed  on  the 
ground  that  Lowe  was  the  complainant's  agent.  That  he  was 
such  agent  up  to  November,  1877,  she  herself  says.  She  testi- 
fies that  she  left  the  bond  and  mortgage  in  his  hands  for  about  two 
years  after  they  had' been  assigned  to  her,  in  order  that  he  might 

29 


450  CASES  IN  CHANCERY.  [33  Eq. 


Emery  v.  Gordon. 


receive  the  interest,  and  nothing  else,  and  she  adds  that  he  was 
her  agent  for  that  purpose,  and  that  after  the  two  years  she  got 
her  papers  from  him.  The  assignment  was  made  in  July,  1875, 
and  she  took  the  papers  out  of  his  hands  in  November,  1877. 
While  Lowe  thus  had  possession  of  the  bond  and  mortgage,  Gor- 
don could  safely  pay  both  principal  and  interest  to  him.  The 
principal,  indeed,  was  not  due,  but  nevertheless  Lowe  was  the 
complainant's  agent,  and  as  such  had  possession  of  the  bond  and 
mortgage,  and  payments  made  to  him  on  account  of  the  principal, 
under  such  circumstances,  were  binding  on  her.  But  those  made 
to  him  after  the  bond  and  mortgage  were  taken  out  of  his  pos- 
session, were  not.  The  letter  of  July  8th,  1878,  substantially 
gave  Gordon  notice  not  to  pay  interest  to  any  one  else  except  the 
complainant  in  person,  or,  in  case  of  her  absence  from  home, 
to  her  landlady.  Gordon  was,  after  the  assignment  was  left  for 
record,  charged  with  the  duty  of  seeing  to  it  that  the  person, 
whether  Lowe  or  any  one  else  (except  the  landlady),  to  whom  he 
should  make  payment,  was  entitled  to  receive  it.  In  fact,  he 
never  made  any  payment  to  Lowe  as  the  complainant's  agent, 
but,  being  unaware  of  the  assignment,  paid  him  as  the  mortgagee, 
and  after  he  received  the  complainant's  letters  of  July  8th  and 
October  10th,  1878,  he  acted  on  Lowe's  assurance  that  they  were 
of  no  importance,  and  took  Lowe's  advice  to  pay  no  attention  to 
them.  Under  the  circumstances,  however,  he  is  entitled  to  the 
same  protection  (and  no  more)  as  if  he  had  actually  known  of 
the  fact  of  the  assignment,  of  the  fact  that  after  the  assignment 
was  made  Lowe  was,  up  to  November  1st,  1879,  the  complain- 
ant's agent,  having  possession  of  the  bond  and  mortgage  as  such, 
and  that  on  that  date  Lowe's  agency  ceased,  and  the  bond  and 
mortgage  were  taken  away  from  him  accordingly.  Lowe,  by 
gross  fraud,  obtained  from  Gordon,  on  account  of  the  principal 
of  the  mortgage,  $2,500,  which  he  has  never  paid  over,  and  that 
money  is  hopelessly  lost.  As  to  $1,600  qf  it,  the  defendants 
are  entitled  to  protection,  but  as  to  the  rest  they  are  not.  Both 
Gordon  and  the  complainant  are  innocent  parties,  and  the  ques- 
tion is,  which  of  them  should  bear  the  loss.  The  defence  of 
ratification  which  is  set  up  is  by  no  means  established.     The 


6  Stew.]  FEBRUARY  TERM,  1881.  451 

"Wester velt  v.  Freeh. 

weight  of  the  evidence  is  against  it.  Up  to  January  14th,  1879, 
interest  was  paid,  as  before  stated,  on  the  whole  amount  of  the 
principal  of  the  bond  and  mortgage.  After  Lowe's  depart- 
ure from  the  state,  which  was  in  May,  1879,  Gordon  re- 
fused to  pay  interest  on  more  than  $1,000  of  principal,  which  he 
insisted  was  all  that  was  unpaid  on  the  mortgage.  He  paid  $35 
for  six  months'  interest  on  that  sum  on  the  14th  of  July,  1879, 
and  the  bill  was  filed  in  August  following.  The  principal  was 
due,  by  the  terms  of  the  mortgage,  on  the  14th  of  July,  1880. 
There  will  be  a  decree  for  the  complainant  for  principal  and 
interest,  in  accordance  with  the  views  above  expressed. 


P.  Van  Allen  Westervelt 

V. 

Theodore  W.  Frech  et  al. 

On  a  note  made  by  the  complainant  for  the  accommodation  of  the  endorser, 
■with  the  payee's  (the  defendant's)  knowledge  that  it  was  made  for  accommo- 
dation, the  defendant  recovered  a  judgment  at  law.  Afterwards,  the  defend- 
ant, without  the  complainant's  knowledge  or  consent,  took  the  endorser's  notes, 
some  of  which  were  paid  and  others  renewed  and  not  paid,  on  which  judg- 
ment was  recovered. — Held,  that  the  giving  of  time  to  the  endorser,  by  taking 
•  his  notes,  discharged  the  maker  from  liability  on  the  original  judgment. 


Bill  for  relief.     On  final  hearing  on  pleadings  and  proofs. 

Mr.  J.  W.  Griggs,  for  complainant. 

Mr.  John  Schomp,  for  defendants  T.  "W.  Frech  &  Co 

The  Chancellor. 

The  object  of  this  suit  is  to  protect  the  complainant  against  a 
judgment  at  law,  recovered  against  him  and  his  brother,  Corne- 
lius C.  Westervelt,  by  Theodore  W.  Frech  and  Arthur  A.  Ten 


452  CASES  IN  CHANCERY.  [33  Eq. 

Westervelt  r.  Freeh. 

Eyck  (T.  ^y.  Frecli  &  Co.,)  October  5th,  1877,  in  the  supreme 
court  of  this  state,  for  $2,650.11,  upon  a  promissory  note  made 
by  the  complaiuaut  for  tlie  accommodation  of  liis  brother  Corne- 
lius, to  be  discounted  for  the  latter  by  T.  W.  Freeh  &  Co.  The 
judgment  being  wholly  unpaid,  an  arrangement  was  made 
between  Cornelius  and  Freeh,  on  the  10th  of  December,  five 
days  after  the  judgment  was  recovered,  by  which  the  former  was 
to  give  to  T.  W.  Freeh  &  Co.  his  check  on  a  bank  in  Jersey 
City  for  $86.51,  and  his  note,  at  three  months,  for  $2,700, 
endorsed  by  Michael  Sandford,  on  the  understanding  and  agree- 
ment that  if  the  check  should  be  paid  on  presentation,  after 
October  17th,  1877,  and  one-half  of  the  note  at  maturity,  with  a 
renewal  at  three  months  for  the  other  half  and  interest,  and  the 
note  given  in  renewal  should  be  paid  in  full  at  its  maturity,  it 
should  be  in  satisfaction  of  the  judgment,  but  the  judgment  wa? 
"to  be  valid  and  binding  until  the  payment  of  the  note  and  check,' 
according  to  the  agreement.  The  check  was  duly  paid;  the  note 
for  $2,700  was  not.  It  was  renewed  as  to  $2,600  of  it ;  two 
notes  being  given  therefor,  one  for  $1,400  at  two  months,  and 
the  other  for  $1,200  at  tiiree  months;  the  balance  being  paid  in 
cash.  The  note  for  $1,200  was  paid  at  maturity.  The  other 
was  not,  but  renewed.  In  November,  1878,  the  note  last  given 
in  renewal  thereof  being  unpaid,  the  holder  of  it,  the  Somerset 
County  Bank,  to  which  the  firm  of  T.  W.  Freeh  &  Co.  had 
endorsed  it,  brought  suit  on  it  in  the  supreme  court,  against  Cor- 
nelius C.  Westervelt,  Michael  Sandford,  and  Freeh  and  his 
partner,  Ten  Eyck,  and  recovered  judgment  thereon  December 
28th,  1878.  After  the  judgment  was  recovered,  Cornelius  C. 
Westervelt  and  Sandford,  by  agreement  with  Freeh,  gave  him 
two  notes  for  $600  each,  and  Cornelius  C.  Westervelt  paid  the 
amount  of  the  interest  in  cash.  These  notes  were  given  with  a 
view  to  having  them  discounted  by  the  Somerset  County  Bank, 
and  the  proceeds  used  for  the  payment  of  that  judgment.  They 
appear  not  to  have  been  used  at  all.  In  March,  1880,  an  execu- 
tion was,  for  the  first  time,  issued  on  the  original  judgment,  and 
it  was  levied  on  the  property  of  the  complainant.  He  then 
brought   this  suit   for  relief,  on  the  ground  that  being  a  mere 


6  Stew.]  FEBRUARY  TERM,  1881.  453 

Westervelt  v.  Freeh. 

surety,  aud  known  to  Freeh  &  Co.  to  be  such,  and  they  having 
given  an  extension  of  time  to  Cornelius  C.  Westervelt  upon  that 
judgment,  he  is,  in  equity,  thereby  discharged  from  liability  on 
the  judgment.  He  alleges  that  he  did  not,  until  that  time,  know 
that  a  judgment  had  been  entered  against  him,  and  he  alleges, 
also,  that  during  the  time  between  the  entry  of  the  judgment  and 
the  time  of  the  acceptance,  by  Freeh  &  Co.  of  the  before-men- 
tioned note  of  $1,200,  in  July,  1878,  his  brother  was  solvent,  or, 
at  least,  had  enough  property  to  have  enabled  the  complainant  to 
indemnify  himself  therefrom  if  he  had  been  compelled  to  pay 
the  judgment  against  him;  but  that  since  the  latter  date  both 
Cornelius  and  Sandford  have  been  insolvent,  and  that  if  he  is 
compelled  to  pay  the  balance  due  on  the  judgment  against  him, 
he  will  be  without  recourse  for  his  indemnity,  and  will  be  com- 
pelled to  lose  his  money. 

The  defendants  insist  that  the  fact  that  the  complainant  was  a 
mere  surety  for  his  brother  was  not  known  to  Freeh,  who  trans- 
acted the  entire  business  for  his  firm  in  taking  the  original  note, 
recovering  the  judgment  thereon,  accepting  the  check  and  note 
given  on  the  10th  of  December  (the  receipt  therefor  was  signed 
by  him),  and  the  rest  of  the  business  in  connection  with  the 
claim.  Freeh  says  that  the  paper  which  Cornelius  was  to  obtain 
and  send  to  him  to  be  discounted,  was  to  be  endorsed  by  the 
complainant ;  but,  instead  thereof,  he  received  a  note  made  by 
the  complainant  and  endorsed  by  Cornelius.  He  does  not  say 
he  supposed,  or  had  any  reason  to  think,  that  the  note  was  not 
mere  accommodation  paper.  The  origin  of  the  note  was  this : 
Cornelius  owed  the  firm  of  T.  W.  Freeh  &  Co.  between  $600 
aud  $700  on  a  note  given  by  him  to  them.  Freeh  called  on  him 
for  the  money,  but  he  could  not  pay  it.  In  the  course  of  the 
conversation  which  then  took  place  between  them,  Cornelius 
asked  him  if  he  could  obtain  a  loan  for  him;  to  which  Freeh 
replied  that  if  Cornelius  "  would  make  good  paper,"  he  would 
try;  and  he  says  that  Cornelius  then  said  he  would  give  him  a 
note  endorsed  by  P.  Van  Allen  "Westervelt,  of  Paterson.  The 
note  given  to  Freeh  to  be  discounted  was,  as  before  stated,  made 
by  the  complainant  and  endorsed  by  Cornelius.     Both  Cornelius 


454  CASES  IN  CHANCERY.  [33  Eq. 

Westervelt  v.  Freeh. 

and  his  sons,  who  were  present  at  the  conversation,  swear  that 
what  Cornelius  said  was  that  he  thought  he  could  borrow  some 
good  paper,  and  on  Freeh's  asking  whose  paper  it  would  be,  he 
replied  that  it  would  be  that  of  his  brother  at  Paterson.  There 
is  no  reason  to  doubt  tliat  Freeh  knew  that  the  complainant  was 
merely  an  accommodation  maker.  He  says  he  regarded  Corne- 
lius as  worthless,  but  he  never  made  any  application  to  the  com- 
plainant to  pay  the  judgment  until  after  all  his  transactions  with 
Cornelius,  for  the  payment  of  it,  were  at  an  end.  And  yet  he 
says  it  was  on  the  strength  of  the  complainant's  pecuniary 
responsibility  alone  that  he  took  the  original  note.  In  all  the 
tiansactions  in  reference  to  the  judgment  after  its  recovery,  he 
dealt  with  Cornelius  as  the  principal  debtor.  He  says,  indeed, 
that  the  agreement  between  him  and  Cornelius,  in  pursuance  of 
which  he  received  the  original  note,  was  that  the  latter  was  to 
give  him  a  note  to  be  made  by  Cornelius  and  endorsed  by  the 
complainant,  while  the  note  which  Cornelius  gave  him  was  not 
made  by  the  latter,  but  by  the  comj)lainant,  and  endorsed  by  Cor- 
nelius. He  knew,  however,  that  the  paper  which  was  brought 
to  him  was  made  as  security  for  a  loan  for  Cornelius.  He  says, 
narrating  the  conversation  out  of  which  the  note  came — 

"He  [Cornelius]  asked  me  if  I  could  not  engineer  a  loan  throiigli  for 
him;  I  told  him  if  he  made  good  paper,  I  would  try;  he  said  he  was  very 
short  just  then  and  would  like  to  use  $2,500  or  $3,000 ;  I  told  him  if  he  would 
make  me  a  good  note  for  $2,500  or  $3,000,  and  allow  me  to  deduct  my  bill,  I 
•would  discount  the  note  for  him  myself;  he  said  he  would  give  me  a  note 
endorsed  by  P.  Van  Allen  Weslervelt,  of  Paterson  ;  as  to  the  responsibility  of 
p.  Van  Allen  Westervelt,  he  referred  me  to  Mr.  Hogencamp,  of  the  Second 
Rational  Bank  of  Jersey  City,  who  lived  close  by  him;  and  I  told  him  if  Mr. 
Hogencamp  said  the  note  was  good,  and  he  would  allow  me  to  deduct  my  bill, 
I  would  give  him  the  money ;  he  brought  the  note  to  me  ;  I  did  not  know  P. 
Van  Allen  Westervelt's  signature ;  instead  of  his  bringing  a  note  endorsed  by 
P.  Van  Allen  Westervelt,  he  brought  me  P.  Van  Allen  Westervelt's  note ;  I 
Bent  our  bookkeeper  to  Jersey  City  with  the  note  to  show  to  Mr.  Hogencamp ; 
I  took  his  note,  and  that  is  the  note  on  which  this  suit  [the  suit  in  which  the 
judgment  was  recovered]  was  brought," 

Cornelius  swears  that  what  he  said  to  Freeh  was  that  he 
thought  he  could  borrow  some  good  paper ;  that  Freeh  asked 


6  Stew  ]  FEBHUARY  TERM,  1881.  455 

Westei*relt  v.  Freeh. 

him  "  whose  paper  ?"  and  he  replied  that  it  was  the  paper  of  his 
brother  in  Paterson,  and  that  Freeh  said  that  if  he  would  let 
him  keep  his  bill  out  of  it  he  would  discount  it  for  him,  first 
inquiring  if  it  was  good.  He  also  says  that  in  a  day  or  two  he 
received  a  telegram  from  Freeh  saying,  "  all  right,  send  it  along," 
and  he  obtained  the  paper  and  took  it  to  Freeh  accordingly.  His 
son,  Charles  S.,  testifies  that  his  father  told  Freeh  that  he  could 
borrow  the  notes  of  his,  the  witness's,  uncle  in  Paterson,  or 
thought  he  could,  and  that  Freeh  said  he  would  inquire  into  the 
uncle's  responsibility,  and  let  the  witness's  father  know.  Corne- 
lius, another  son,  says  his  father  spoke  of  his,  the  latter's,  brother's 
notes,  and  asked  whether  if  he  got  his  brother's  notes  Freeh 
would  discount  them.  He  adds  that  he  understood  from  the 
conversation  that  the  notes  were  to  be  merely  accommodation 
paper.  The  complainant,  in  his  bill,  says  Cornelius  applied  to 
him  to  endorse  his  note  for  discount,  for  his  accommodation,  and 
that  he,  the  complainant,  drew  the  note  himself,  and  instead  of 
endorsing  it,  signed  it  as  maker,  for,  as  he  says,  no  special  reason, 
but  because  he  thought  that  was  "  the  proper  way  to  draw  a  note 
given  for  accommodation."  The  note  was  made  merely  for  accom- 
modation and  there  was  no  understanding  that  the  paper  to  be 
received  by  Freeh  for  discount  was  to  be  business  paper,  but  as 
before  stated,  on  the  other  hand,  it  was  to  be  paper  on  which  the 
complainant  was  to  be  surety,  made  to  secure  a  loan  for  Cornelius. 
The  agreement  of  December  10th  (made  five  days  after  the  entry 
of  the  judgment  on  the  original  note),  was  an  agreement  by 
which  Freeh,  for  himself  and  his  copartner,  coplaiutiff  with 
him  in  the  judgment,  bound  the  plaintiffs  in  the  judgment  not  to 
execute  it,  provided  the  check  and  note  were  paid  according  to  the 
stipulation ;  that  is,  provided  the  check  should  be  paid  on  pre- 
sentation after  the  18th  of  October,  1877,  and  one-half  of  the 
amount  of  the  note  paid  at  maturity  (three  months  after  its  date, 
October  9th,  1877),  and  a  renewal  note  made  for  the  other  half, 
at  three  months,  with  interest,  and  the  note  given  in  renewal 
should  be  paid  at  its  maturity.  It  is  true,  the  agreement  stipu- 
lates that  the  "judgment  is  to  be  held  valid  and  binding  until 
such  payment  of  the  note  and  check,"  but  the  effect  of  that 


456  CASES  IN   CHANCERY.  [33  Eq. 

Westervelt  v.  Freeh. 

stipulation  is  merely  that  tlie  judgment  shall  stand  as  security  in 
the  meantime.  The  rights  of  the  plaintiffs  in  the  judgment 
against  the  surety  were  not  thereby  reserved ;  nor  were  the  note 
and  check  taken  merely  as  collateral  security  for  the  judgment. 
The  plaintiffs  in  the  judgment  could,  of  course,  have  been 
restrained  from  proceeding  on  the  judgment  to  recover  the  money 
due  thereon,  as  against  Corneiius,  until  after  default  in  payment 
of  the  check  and  note  according  to  the  terms  of  the  stipulation 
in  that  beiialf.  And  if  the  surety  had  paid  the  judgment  before 
such  default,  he  could  not  have  obtained  indemnity  under  the 
judgment,  for  lie  could  not  have  proceeded  under  it,  since  the 
complainant,  by  subrogation  to  whose  rights  alone  he  would  have 
been  enabled  to  use  the  judgment  for  the  purpose,  could  not 
himself  have  proceeded  upon  it.  It  is  an  established  principle 
that  where  the  creditor,  knowing  the  surety  to  be  such,  without 
his  assent,  and  without  reserving  his  rights  as  against  him,  gives 
time  to  the  principal,  the  surety  is  ipso  facto  discharged  from  his 
liability;  and  that,  too,  if  the  time  be  given  after  a  judgment 
recovered  against  both  upon  the  contract;  and  it  is  also  estab- 
lished that  this  doctrine  applies  where  the  contract  is  that  of  a 
maker  of  a  negotiable  j^romissory  note  made  for  the  accommoda- 
tion of  the  endorser.  In  the  case  in  hand  the  firm  of  T.  W. 
Freeh  &  Co.  lent  to  Cornelius  C.  Westervelt  $2,500,  less  the 
discount  on  a  promissory  note  of  that  amount,  which  they  knew 
was  made  by  the  complainant  without  consideration  and  merely 
for  the  accommodation  of  the  borrower.  Having  obtained  judg- 
ment against  both  maker  and  endorser,  the  borrower,  they  gave 
the  latter  time  without  the  assent  or  knowledge  of  the  maker 
and  without  reserving  their  right  to  proceed  against  him.  He 
was  thereby  discharged.  It  was  urged  upon  the  hearing  that  tiie 
agreement  for  time  was  made,  or  assented  to,  by  an  agent  of  the 
complainant,  and  the  answer  alleges  that  Saudford,  the  endorser 
on  the  note  given  after  the  judgment  was  recovered,  was  the 
agent  of  the  complainant  in  that  matter ;  but  there  is  no  evidence 
to  support  the  claim.  The  complainant  is  entitled  to  a  decree 
declaring  him  discharged  from  liability  on  the  judgment,  and 
the  injunction  will  be  made  perpetual  accordingly,  but  without 
costs. 


6  Stew.]  FEBRUARY  TERM,  1881.  457 

Thome  v.  Andrews. 


Fannie  W.  Thorne 

V. 

PuENELL  W.  Andrews  et  al. 

A  petition  to  set  aside  a  master's  sale  in  partition  was  dismissed,  where  an 
application  to  the  master  to  adjourn  the  sale  was  made  after  the  sale  had 
begun  ;  the  price  obtained  for  the  premises  was  satisfactory ;  the  master's  dis- 
cretion as  to  selling  nine  lots  in  gross,  fairly  exercised,  and  the  petitioner  was 
in  laches  in  presenting  his  petition. 


In  partition.  On  order  to  show  cause  why  sale  should  not  be 
set  aside.     On  petition, 

Mr.  C.  A.  Bergen,  for  the  petitioners. 

Mr.  C  P.  Stratton,  for  complainant. 

Mr.  E.  A.  Armstrong,  for  a  purchaser. 

The  Chancellor. 

Application  is  made  to  set  aside  the  master's  sale  in  this  suit, 
on  the  following  grounds :  that  a  reasonable  request  for  an 
adjournment,  made  by  one  of  the  petitioners,  was  refused ;  that 
the  sale  was  a  surprise  on  the  petitioners,  because,  as  they  allege, 
it  was  understood  between  Purnell  "W.  Andrews,  one  of  the 
petitioners  (who  was  acting  for  all  of  them),  and  the  complain- 
ant's solicitor,  that  the  property  was  not  to  be  sold  at  a  sacrifice ; 
that  the  sale  was  conducted  in  a  "  mysterious"  way,  and  not 
understood  by  the  persons  present ;  that  the  principal  piece  of 
the  property,  consisting  of  nine  building  lots,  was  sold  as  a  whole, 
when  it  ought  to  have  been  sold  in  lots,  and  that  the  prices 
obtained  for  the  property  at  the  sale  were  inadequate.  Purnell 
\y.  Andrews  was  present  at  the  sale,  and  was  able  to  protect  the 
interest  of  himself  and  his  copetitiouers,  by  bidding  on  and  buy- 
ing in  the  property.     He  not  only  purchased  none  of  it,  but  as 


458  CASES  IN  CHANCERY.  [33  Eq. 

Smith  V.  Smith. 

to  the  piece  containing  nine  lots,  expressed  himself  satisfied  with 
the  price  which  it  brought.  Moreover,  the  sale  took  place  on 
the  8th  of  January,  1881,  and  he  did  not  file  his  petition  until  a 
month  afterwards,  and  only  four  days  before  the  day  fixed  by 
the  master,  in  the  conditions  of  sale,  for  the  delivery  of  the  deeds. 
The  property  is  in  Camden,  and  Andrews  lives  in  that  city.  The 
delay  is  not  explained.  An  examination  of  the  testimony  satisfies 
me  that  the  master  acted  fairly  and  discreetly  in  refusing  to  grant 
the  adjournment,  which,  it  should  be  stated,  was  not  asked  for 
until  after  the  sale  had  begun.  Nor  is  the  allegation  of  surprise 
sustained.  The  conduct  of  the  complainant's  solicitor  appears  to 
have  been  frank  and  fair,  and  he  seems  to  have  taken  pains  to 
obtain  the  best  price  practicable,  for  the  property.  There  is  no 
ground  for  the  objection  that  the  sale  was  conducted  in  a  "  mys- 
terious" way,  or  that  it  was  not  understood  by  the  persons  present. 
The  prices  obtained  were  not  only  not  such  as  to  induce  the  court 
to  set  aside  the  sale  for  inadequacy,  but  they  appear  to  be  such 
as,  in  view  of  the  fact  that  the  sale  was  by  public  auction,  should 
be  regarded  as  very  satisfactoiy.  The  master  used  his  discretion 
in  selling  the  piece  containing  nine  lots  as  a  whole,  and,  it  may 
be  added,  he  appears  to  have  exercised  it  very  judiciously.  One 
of  the  other  pieces  of  the  property  was  struck  off  at  $5,  but  the 
title  was  clouded,  and  it  was  bid  in  in  behalf  of  the  estate. 

The  order  to  show  cause  will  be  discharged  and  the  petition 
dismissed,  with  costs. 


Alicia  A.  Smith 

V. 

RicHAED  Smith. 


On  an  application  for  temporary  alimony  and  counsel  fee,  in  a  suit  for  di- 
vorce for  extreme  cruelty,  it  was  argued  that  from  the  statements  of  the  bill, 
the  cruelty  complained  of  was  the  result  of  the  husband's  insanity. — Held,  that 


6  Stew.]  FEBRUARY  TERM,  1881.  459 

Smith  V.  Smith. 

a  wife  is  equally  entitled  to  protection  against  extreme  cruelty  on  the  part  of 
her  husband,  where  his  malevolence  is  the  result  of  insane  delusion,  as  where 
it  springs  from  jealousy  or  hatred. 


Bill  for  divorce  for  extreme  cruelty.  Motion  for  alimony 
pendente  lite  and  counsel  fees,  and  other  provision  for  the  conduct 
of  the  suit. 

Mr.  S.  Tuttle,  Mr.  J.  D.  Bedle  and  Mr.  C.  Parker,  for  the 
motion. 

Mr.  J.  W.  Taylor  and  Mr.  T.  N.  McCarter,  contra. 

The  Chancellor. 

The  motion  is  made  upon  the  bill,  and  the  affidavits  thereto 
annexed.  The  parties  were  married  November  7th,  1854,  and 
from  that  time  up  to  the  time,  August  28th,  1880,  when  the  com- 
plainant left  her  husband,  they  resided  in  Newark  together.  He 
still  resides  there,  and  carries  on,  as  he  has  for  many  years  past, 
a  large  and  prosperous  business  as  a  jeweller  in  that  city.  When 
the  complainant  left  her  husband  she  went  to  Paterson,  where 
she  has  ever  since  lived.  She  alleges  that  she  was  driven  from  her 
husband's  house,  and  constrained  to  seek  refuge  elsewhere,  by 
his  extreme  cruelty  towards  her.  According  to  the  bill,  the 
cruelty  consisted  of  (among  other  things)  violent  and  threaten- 
ing conduct,  a  violent  blow  which  he  struck  her  on  the  4th  of 
August,  1880,  and  a  hideous  charge  of  criminality  which  it  is 
unnecessary  now  to  particularize.  It  is  urged,  in  opposition  to 
the  motion,  that  on  the  statements  of  the  bill  itself  the  defend- 
ant must  have  been  insane  when  he  committed  the  acts  com- 
plained of.  But  not  only  does  it  not  appear  that  he  has  ever 
been  adjudged  to  be  insane,  but  it  appears  by  the  bill  that,  as 
before  stated,  he  is  engaged  in  a  large  and  successful  business, 
and  has  property,  including  his  investment  in  his  business, 
to  the  amount  of  over  $50,000,  all  of  which  it  seems  he  himself 
manages.     From, this  fact  it  is  a  legitimate  deduction  that  if  he 


460  CASES  IN   CHANCERY.  [33  Eq. 

Smith  r.  Smith. 

is  insane  at  all,  his  insanity  must  be  partial  merely,  and  does  not 
extend  to  his  business  faculties,  nor  affect  him  in  his  ordinary 
intercourse  with  society.  A  husband  is,  by  law,  required  to  sup- 
port his  wife,  and  if,  by  his  extreme  cruelty,  he  expels  her  from 
his  house,  he  may  be  compelled  to  support  her  elsewhere.  Nor  is 
she  required  by  the  obligations  of  her  matrimonial  duty  to  abide 
with  him  when  his  cruel  treatment  of  her  through  malevolence, 
whether  the  result  of  insanity  or  not,  renders  it  dangerous  to  her 
life  or  health  to  continue  to  live  under  the  same  roof  with  him. 
It  is  sometimes  difficult  to  distinguish  between  the  malevolence 
which  is  the  offspring  of  insanity  and  that  which  is  the  result 
of  the  sway  of  bad  and  unbridled  passion.  For  example,  com- 
mon observation  has  taught  the  unreasonableness  and  inconsid- 
erateness  of  jealousy  in  a  sound  mind,  and  its  supreme  and  ab- 
solute control  over  its  subject.  Eminent  judges  have  expressed 
an  unwillingness  to  refuse  the  protection  of  the  court  to  a  wife 
against  cruelty  on  the  part  of  her  husband,  where  the  excuse 
offered  is  eccentricity  or  a  peculiarly  excitable  state  of  mind,  the 
result  of  past  disease.  Said  Dr.  Lushington,  in  Dysart  v.  Dy- 
sart,  1  Rob.  K  106, 116  : 

"  When  I  find  conduct  towards  a  wife  likely  to  prove  dangerous  to  her 
safety,  but  not  in  other  cases,  I  shall  consider  it  within  my  cognizance,  what- 
ever may  have  been  the  cause  thereof,  whether  having  arisen  from  natural 
violence  of  disposition,  from  want  of  moral  control,  or  from  eccentricity.  It 
is  for  me  to  consider  the  conduct  itself,  and  its  probable  consequences ;  the 
motives  and  causes  cannot  hold  the  hand  of  the  court  unless  the  wife  be  to 
blame,  which  is  a  wholly  difierent  consideration." 

And  Sir  Creswell  Creswell,  judge  ordinary,  in  Curtis  v.  Curtis, 
1  Sw.  &  Tr.  192,  213,  after  quoting  with  approbation  the  above 
lauguage  of  Dr.  Lushington,  proceeds  to  say : 

"  If,  indeed,  an  act  of  violence  were  committed  under  the  influence  of  an  acute 
disorder,  such  as  brain  fever,  and  it  were  made  clear  that,  the  disorder  having 
been  subdued,  there  was  no  danger  of  a  recurrence  of  such  acts,  the  case  would 
be  different.  But  if  the  result  of  such  a  disease  has  been  a  new  condition  of 
the  brain,  rendering  the  party  liable  to  fits  of  ungovernable  passion,  which 
would  be  dangerous  to  a  wife,  then  undoubtedly  this  court  is  bound  to  eman- 
cipate her  from  such  peril." 


t  Stew.]  FEBRUAEY  TERM,  1881.  461 

Smith  V.  Smith. 

It  would  not  be  proper  or  justifiable  in  this  case,  at  this  stage, 
to  conclude  that  the  defendant's  conduct  is  the  result  of  insanity 
or  insane  delusion,  and  therefore  it  is  not  necessary  now  to  deter- 
mine whether,  if  the  cruelty  complained  of  be  shown  to  be  the 
result  of  insane  delusion  in  a  mind  in  other  respects  sound,  it 
would  not  be  the  duty  of  the  court  to  relieve  the  complainant  by 
a  divorce  from  bed  and  board  from  the  risk  to  which  she  would 
be  subjected  by  living  with  her  husband.  Nevertheless,  it  is  not 
out  of  place  to  say  that  it  seems  to  me  clear  that  a  wife  is  equally 
entitled  to  protection,  under  our  divorce  law,  against  extreme 
cruelty  on  the  part  of  her  husband,  where  his  malevolence  is  the 
result  of  insane  delusion,  as  where  it  springs  from  jealousy  or 
hatred.  A  distinction  is  to  be  made  between  such  a  case  and  a 
case  where  the  husband  is  shown  to  be  insane  generally.  In  the 
latter  case,  the  wife  may  obtain  protection  through  appropriate 
proceedings  to  cause  her  husband  to  be  declared  a  lunatic.  A 
man  may,  as  is  well  known,  be  mentally  competent  to  transact 
all  business,  and  still  be  the  subject  of  insane  delusion  as  to  a 
particular  individual.  Or,  as  Lord  C.  J.  Cockburn  expresses  it 
in  Banks  v.  Goodfellow,  L.  R.  {5  Q.  B.)  54^,  560 : 

"  There  often  are  delusions,  which,  though  the  offspring  of  mental  disease, 
and  80  far  constituting  insanity,  yet  leave  the  individual  in  other  respects 
rational,  and  capable  of  transacting  the  ordinary  affairs  and  fulfilling  the 
duties  and  obligations  incidental  to  the  various  relations  of  life." 

Where  a  man  is  capable  of  managing  his  estate  and  discharg- 
ing all  his  duties  towards  every  one  else  except  his  wife,  whom 
he  maltreats  because  of  insane  delusion  as  to  her,  rendering  asso- 
ciation with  him  by  her  uusupportable  and  unsafe,  and  perhaps 
even  endangering  her  life,  it  would  be  irrational  to  deny  her  the 
protection  of  the  law  which  accords  to  a  wife  a  separate  mainten- 
ance out  of  her  husband's  estate,  when  necessary  to  protect  her 
from  his  brutality.  The  motion  will  be  granted.  The  tempo- 
rary alimony  will  be  fixed  at  the  rate  of  $1,000  a  year,  payable 
in  equal  monthly  installments,  and  to  begin  with  the  date  of  the 
filing  of  the  bill,  which  appears  to  have  been  some  months  after 
the  complainant  left  her  husband.     If  it  should  be  made  to 


462  CASES  IN  CHAXCERY.  [33  Eq. 

McClung  V.  McCliing. 

appear  that  (as  was  stated  to  be  the  case  on  the  argument)  there 
are  unpaid  debts  contracted  by  the  wife  against  her  husband  for 
her  support,  the  amount  of  whicli  ought,  in  justice,  to  be  allowed 
him,  on  account  of  the  alimony  hereby  ordered,  the  allowance 
will  be  made,  but  it  does  not  appear  so  now.  It  is  to  be 
observed  that  the  allowance  hereby  provided  for  does  not  cover 
the  time  between  her  departure  and  the  filing  of  the  bill.  He 
was  bound  to  support  her  during  that  period,  and  the  practice  of 
beginning  the  alimony  with  the  commencement  of  the  suit  has 
arisen  from  the  presumption  that  up  to  that  time  the  wife  was 
able  to  obtain  her  support  from  the  husband.  If  tlie  debts 
referred  to  are  for  the  complainant's  maintenance  during  that 
period,  they  will  not,  if  they  are  not  unreasonable,  be  considered 
in  the  alimony.  There  will  be  an  allowance  to  the  complainant 
of  $300  for  counsel  fees,  and  provision  will  be  made  for  the  pay- 
ment of  the  expenses  of  the  suit  as  it  progresses. 


Hkneietta  a.  McClung 

V. 

Charles  A.  McClung. 


A  defendant  discharged  from  imprisonment  for  contempt  in  disobeying  an 
order,  although  he  had  not  cleared  his  contempt,  the  chancellor  being  of 
opinion  that  the  authority  of  the  court  had  been  vindicated  in  the  imprison- 
ment whicli  tlie  defendant  had  undergone. 


Bill  for  divorce  from  bed  and  board  for  extreme  cruelty.     On 
motion  to  discharge  defendant  from  custody  for  contempt. 

Mr.  A.  Rugg,  for  the  motion. 

Mr.  S.  H.  Gh-ey,  for  the  complainant. 

The  Chancellor. 

By  order  made  on  the  15th  of  April,  1879,  the  defendant  was 


6  Stew.]  FEBRUAKY  TERM,  1881.  463 

McClung  V.  McClung. 

adjudged  to  be  in  contempt  of  this  court,  and  it  was  ordered  that 
for  his  contempt  he  be  committed  to  the  jail  of  Camden  county. 
The  contempt  was  his  refusal  to  obey  an  order  in  this  suit  re- 
quiring him  to  pay  2i\.\xnox\y  pendente  lite  at  the  rate  of  $10  a 
week.  He  was  in  default  in  the  payment  for  many  months. 
He  had  in  fact  paid  nothing  from  August  1st,  1878.  The  order 
for  the  commitment  was  made  on  due  notice  and  a  full  hearing. 
He  now  asks  to  be  released  from  his  confinement.  He  has  not 
paid  the  alimony  for  non-payment  whereof  he  was  adjudged  to 
be  in  contempt,  nor  anything  on  account  of  it,  and  he  has  paid 
nothing  for  the  support  of  his  wife  and  children  since  the  1st 
of  August,  1878.  He  does  not  appear  to  have  made  any  effort 
to  pay  anything.  He  has  had  property  out  of  which  he  could 
have  paid  the  alimony.  After  he  was  committed  he  conveyed 
to  his  mother  valuable  real  estate,  consisting  of  houses  and  lots 
in  Philadelphia  which  he  inherited  from  his  father,  and  he  ap- 
pears also  to  have  conveyed  to  her  land  in  Camden  belonging  to 
him.  When  he  was  committed  he  owned  a  right  for  his  life  to 
the  rents  of  two  other  houses  and  lots  in  Philadelphia,  which  he 
had  previously  conveyed  to  two  of  his  children,  subject  to  that 
right.  He  appears  to  have  deliberately  made  the  conveyance  to 
his  mother,  and  for  no  valuable  consideration ;  and  it  seems  quite 
evident  that  he  made  it  to  defeat  the  order  for  alimony.  There 
is  no  evidence  that  he  could  recover  the  property  from  his 
mother,  if  he  were  required  to  do  so  as  terms  of  his  release.  He 
He  has  not  cleared  his  contempt,  but  I  think  the  authority  of 
the  court  which  he  set  at  naught  has  been  vindicated  in  the  im- 
prisonment which  he  has  undergone.  I  will  therefore  discharge 
him  on  his  transferring  to  a  receiver  the  right  to  rents  before 
mentioned,  in  order  that  those  rents  may  be  applied  under  the 
order  of  this  court  to  the  payment  of  alimony  ordered  or  to  be 
ordered  in  this  suit,  or  other  payments  which  he  may  be  required 
to  make  in  this  cause ;  and  he  will  be  required  to  pay  the  costs 
of  the  order  of  commitment,  and  also  a  fine  of  $5  to  the  clerk 
of  this  court  for  the  use  of  the  state,  according  to  the  provisions 
of  the  statute.     Rev.  W^,  §  103. 


464  CASES  IN  CHANCERY.  [33  Eq. 

Frome  v.  Freeholders  of  Warren. 

Thomas  B.  Feome  et  al. 

V. 

The  Board  of  Chosen  Freeholders  of  the  County 
OF  Warren. 

An  ioj  unction  will  not  be  dissolved  merely  because  the  complainant,  in  his 
bill,  has  unintentionally  misstated  some  of  the  facts  on  which  his  claim  to 
relief  is  founded,  such  misstatements  not  aflecting  the  merits. 


Bill  for  relief.  Motion  to  dissolve  injunction.  On  bill",  answer 
and  afiSdavits. 

Mr.  N.  Harris  and  Mr.  J.  G.  Shipman,  for  the  motion. 

3Ir.  L.  De  Witt  Taylor,  contra. 

The  Chancellor. 

The  bill  is  filed  for  relief  against  a  judgment  at  law,  recovered 
by  the  defendants  against  the  complainants,  Thomas  P.  Frome, 
John  F.  Van  Sickle  and  William  P.  Hance,  and  Robert  P.  Ram- 
say, now  deceased,  on  the  31st  of  December,  1879,  in  the  Warren 
circuit  court,  upon  a  bond  given  by  the  defendants  in  the  judg- 
ment to  the  defendants  in  this  suit  in  May,  1877,  with,  and  as 
sureties  for  Samuel  Frome,  on  his  official  bond,  as  steward  of  the 
Warren  couuty  poor-house.  His  term  of  office,  in  respect  to 
which  the  bond  was  given,  was  one  year  from  the  12th  of  May, 
1877.  The  condition  of  the  bond  appears  to  have  been  that  he 
should  faithfully  perform  his  duties  as  such  steward,  and  render 
a  true  account  of  the  property  and  money  of  the  establishment 
which  might  come  to  his  hands  or  possession.  The  bill  alleges 
that  the  judgment  was  recovered  not  on  that  bond  (as  to  which, 
and  the  suit  brought  by  the  defendants  in  this  suit  thereon,  the 
bill  is  silent),  but  on  an  alleged  like  official  bond  said  to  have 
been  given  by  the  same  persons  with,  and  as  sureties  for,  Frome, 


6  Stew.]  FEBRUARY  TERM,  1881.  465 

Frome  v.  Freeholders  of  Warren. 

as  Steward  for  the  year  beginning  May  12th,  1876.  The  com- 
plainants deny  that  any  such  bond  as  that  last  mentioned  was 
ever  given,  and  allege  that  when  suit  was  brought  upon  such 
alleged  bond,  Frome  undertook  to  attend  to  their  defence  in  the 
action  for  them,  and  employ  counsel  for  them  accordingly.  The 
bill  was  evidently  based  on  the  supposition  that  the  judgment 
was  entered  in  that  suit,  but  it  appears  by  the  answer  that  it  was 
not,  but  was  founded  on  the  bond  given  in  May,  1877,  upon 
which  suit  was  brought  at  the  same  time  and  in  the  same  court 
as  on  the  other  bond  said  to  have  been  given  for  the  year  next 
preceding.  It  is  not  only  not  claimed  by  the  answer  or  by 
defendants  counsel  in  argument,  that  the  sureties  were  liable 
under  the  bond  given  for  the  year  commencing  May  12th,  1877, 
for  default  in  accounting  for  money  received  in  the  year  next 
preceding,  but  the  contrary  is  conceded,  and  yet  it  appears  very 
clearly  that  the  judgment  was  entered  for  default,  in  accounting 
for  money  received  from  one  John  F.  McClellan,  in  February, 
1877,  and  therefore  within  the  preceding  ofiBcial  year.  The 
declaration  in  the  suit,  according  to  the  answer,  alleged  for 
breach,  Frome's  failure  to  account  for  money  received  by  him 
between  the  11th  of  May,  1877,  and  the  12th  of  May,  1878. 
The  suit  brought  on  the  bond  alleged  to  have  been  given  in 
May,  1876,  was  discontinued,  and  the  other  was  proceeded  in. 
An  attorney  appeared  in  the  latter  suit,  for  the  principal  and 
sureties,  and  pleaded  for  them,  and  there  was  a  trial,  by  consent, 
before  the  judge,  without  a  jury  (a  jury  being  waived),  and  judg- 
ment was  entered  for  a  sum  agreed  upon  between  the  plaintiffs 
in  the  suit  and  the  attorney  for  the  defendants  therein.  The 
answer  also  alleges  that  a  rule  to  show  cause  why  the  judgment 
should  not  be  opened  was  taken  in  behalf  of  the  defendants  in 
that  suit,  or  some  of  them,  and  was  discharged  because  it  was  not 
pursued.  But  it  appears  by  the  answer  that  the  rule  was  taken, 
on  the  supposition  that  the  judgment  had  been  entered  on  the 
alleged  bond  of  May,  1876,  which  the  answer  says  was  not  true. 
The  complainants  insist  that  the  attorney  who  appeared  for  the 
defendants  in  the  action,  which  was  prosecuted  to  judgment,  was 
not  retained  by  them  therein,  and  had  no  authority  to  consent  to 

30 


466  CASES  IN  CHANCERY.  [33  Eq. 

Carlton  v.  Vineland  Wine  Co. 

a  judgment,  and  that  the  amount  of  the  judgment  was  the  result, 
not  of  a  trial,  but  a  settlement  between  the  plaintiffs  in  the  action 
and  Frome,  to  which  the  sureties  were  not  a  party,  and  by  which 
they  were  not  bound.  If  the  answer  is  true,  the  whole  history 
of  the  case  is  not  set  forth  in  the  bill,  and  the  bill  is  founded  on 
a  false  supposition  as  to  the  basis  of  the  judgment,  but  if  so,  there 
is  no  evidence  that  there  was  any  intentional  concealment  or  sup- 
pression. The  case  is  one  in  which  the  injunction  should  be 
retained  till  the  final  hearing.  The  motion,  therefore,  will  be 
denied,  but  without  costs. 


Sarah  J.  Carlton,  executrix  &c., 

V. 

The  Vineland  Wine  Company. 

a  bond  and  mortgage  on  lands,  and  also  a  bill  of  sale  of  chattels,  were  given 
to  secure  the  payment  of  a  debt. — Held,  that  parol  evidence  which  was  incon- 
sistent with  the  terms  of  a  contemporaneous  agreement  in  writing  between 
the  parties,  in  regard  to  the  disposition  of  the  mortgaged  chattels  to  pay  the 
mortgage,  was  incompetent. 


Bill  to  foreclose.     On  final  hearing  on  pleadings  and  proofs. 
Mr.  L.  Newcomb,  for  complamant. 
Mr.  W.  A.  House,  for  defendant. 

The  Chancellor. 

The  payment  of  the  complainant's  mortgage  debt  is  secured 
by  a  bill  of  sale  of  over  thirteen  thousand  gallons  of  wine,  and 
the  casks  containing  them,  and  a  mortgage  of  certain  real  estate 
in  Vineland,  and  the  bill  of  complaint  is  filed  for  foreclosure 
and  sale  of  both  wine  and  land.  The  bill  of  sale  and  mortgage 
were  respectively  given    by  the  Vineland  Wine   Company  to 


G  Stew.]  FEBRUARY  TERM,  1881.  467 

Carlton  v.  Vineland  Wine  Co. 

Thomas  J.  Carlton,  the  complaiuant's  testator,  in  November, 
1878.  When  they  were  given,  an  agreement  in  writing,  under 
seal,  Avas  made  and  delivered  by  and  between  the  company 
and  Carlton,  by  which,  after  reciting  that  the  company  had 
made  the  bill  of  sale  to  Carlton  fur  the  wine  and  casks  (which 
it  was  thereby  stated  were  then  set  apart  to  him  in  the  cellar  of 
the  company),  as  security  for  the  payment  of  the  mortgage  debt 
($8,000)  in  eighteen  months  from  that  date,  with  interest,  it  was 
agreed  that  the  wine  Avas  to  be  stored  and  taken  care  of  by  the 
company  free  of  expense,  for  the  eighteen  months,  unless  it 
should  be  sooner  sold,  and  that  Alexander  W.  Pearson,  presi- 
dent of  the  company,  should  be,  and  he  was  thereby  appointed, 
irrevocably,  the  agent  of  Carlton  for  the  eighteen  months  (pro- 
vided he  should  act  in  accordance  with  the  agreement)  to  sell  and 
dispose  of  the  wine  in  such  quantities  as  he  might  choose,  and, 
as  fast  as  it  should  be  sold,  to  pay  to  Carlton  the  sum  of  sixty-eight 
cents  per  gallon  therefor,  or  secure  the  paymentthereof  by  approved 
security  before  the  wine  should  be  removed  from  the  cellar ;  that 
Pearson  might  reserve  out  of  the  sales  the  excess  over  and  above 
the  sixty-eight  cents  per  gallon  for  the  company  as  its  compensation 
for  storing,  selling  and  taking  care  of  the  wine..  And  Pearson 
thereby  agreed  for  the  company  to  take  care  of  and  keep  the 
wine  up  to  its  then  standard  and  not  to  allow  it  to  deteriorate 
in  value,  and  also  to  use  all  diligence  in  selling  it.  And  it  was 
thereby  agreed  that  Carlton  should  have  free  access  to  the  wine 
at  all  reasonable  times,  for  the  purpose  of  inspection,  and  that 
as  soon  as  enough  of  it  should  be  sold  to  pay  the  debt  and  in- 
terest the  rest  should  be  reconveyed  to  the  company.  It  was 
also  expressly  agreed  that  the  wine  should  be  insured  to  the 
amount  of  $8,000,  and  the  loss  made  payable  by  the  policy  to 
Carlton.  The  defence  set  up  by  the  answer  is  that  it  was 
agreed  between  the  parties  that  the  company  should,  if  it  should 
not  be  able  to  sell  the  wine  in  the  eighteen  mouths,  have  such 
further  time  as  would  be  reasonably  necessary  for  the  purpose, 
and  that  Carlton,  in  tfune,  1879  (before  the  eighteen  months  had 
expired),  surreptitiously  got  possession  of  the  cellar,  and  forcibly 
excluded  Pearson  from  it,  and  thenceforward  refused  to  permit 


468  CASES  IN  CHANCERY.  [33  Eq. 

Carlton  v.  Vineland  Wine  Co. 

liim  to  take  care  of  the  wine  or  to  sell  it,  denied  his  right  to  sell 
at  all,  and  would  not  permit  him  to  show  the  wine  to  persons 
desiring  to  purchase,  and  would  not  permit  it  to  be  inspected  at 
all  by,  or  shown  to  anybody,  prevented  Pearson  from  carr}'ing 
on  the  legitimate  business  of  the  company,  and  gave  him  a 
notice  dated  May  13th,  1880,  revoking  the  authority  to  sell  given 
by  the  agreement,  and  forbidding  him  to  remove,  handle  or  dis- 
pose of  any  of  the  wine.  The  answer  claims  damages  to  the 
amount  of  $4,000  for  injury  to  the  wine  by  the  before-men- 
tioned refusal  of  access  to  it,  and  asks  for  further  time  to  sell  it 
to  raise  the  money  which  the  court  may  determine  is  equitably 
due  on  the  mortgage.  The  proof  does  not  sustain  the  answer. 
It  appears  that  Pearson  was  not  at  any  time  denied  access  to  the 
wine,  but,  on  the  contrary,  had  free  access  to  it  at  all  times,  and 
was  fully  at  liberty  to  take  all  necessary  and  proper  measures  to 
preserve  it.  It  also  appears  that  he  was  never  prevented  from 
carrying  on  the  business  of  the  company  on  the  premises,  was 
never  prevented  from  showing  the  wine,  and  that  inspection  was 
never  denied  to  persons  proposing  to  purchase ;  that  Carlton, 
for  the  protection  of  the  property  against  theft,  was  compelled 
to  keep  a  watchman  on  the  pi'emises,  and  that  his  executrix,  in 
the  spring  of  1880,  was  compelled  to  get  the  property  insured  at 
the  expense  of  the  estate,  and  in  November  of  the  same  year 
was  compelled  to  buy  in  the  mortgaged  real  estate  at  a  sale 
thereof  for  the  unpaid  taxes  of  1879  thereon ;  that  Carlton  was 
willing,  while  the  agency  lasted,  that  Pearson  should  sell  any 
quantity  of  the  wine  from  any  cask,  provided  he  would  take 
care  of  the  remainder  in  the  cask,  and  keep  it  in  good  condition, 
and  tliat  Carlton  did  not  give  the  notice  of  revocation  until 
July  16th,  1880,  almost  two  months  after  the  expiration  of  the 
period  of  eighteen  months.  It  is  further  proved  that  the  wine 
is  all  in  good  condition  except  one  cask,  which  was  spoiled  by 
Pearson's  drawing  eleven  gallons  out  of  it  for  his  own  purposes, 
in  November,  1879,  and  supplying  their  place  with  sweetened 
water.  All  the  evidence  on  the  subject  of  the  verbal  under- 
standing alleged  to  have  been  had  before  and  when  the  agree- 
ment was  made  in  reference  to  allowing  further  time  beyond 


6  Stew.]  FEBRUARY  TERM,  1881.  469 

Brown  v.  Balen. 

the  eighteen  months  for  the  sale  of  the  wine  is,  for  ob- 
vious reasons,  wholly  incompetent.  The  witnesses  to  it,  Mr. 
Pearson  and  Mr.  House,  say  the  understanding  was  that  if  the 
eighteen  months  should  prove  not  to  be  long  enough,  the  time 
for  payment  would  be  extended  until  the  wine  should  be  sold. 
In  the  first  place,  the  mortgage  money  is  made  payable  in 
eighteen  months,  and  the  contemporaneous  agreement  in  writing 
provides  that  the  president  of  the  company  shall,  for  the  same 
time,  have  power  to  sell  the  mortgaged  chattels  to  pay  off  the 
mortgage.  In  the  answer,  it  is  said  that  when  the  bond  and 
mortgage  and  bill  of  sale  were  given  it  was  understood  and 
agreed  that  the  bond  and  mortgage  were  not  to  be  paid  until  the 
wine  covered  by  the  bill  of  sale  could  be  sold.  All  the  evidence 
on  this  subject  is  parol  testimony,  and  is  in  contrariety  to  the 
bond  and  mortgage  and  written  agreement,  and  is  therefore  in- 
competent. French  v.  Griffi,n,  3  C.  E.  Gh\  £79.  There  will  be 
a  decree  in  accordance  with  the  views  above  expressed. 


Edwaed  G.  Beown 

V. 

Petee  Balen  et  al. 


1.  Where  a  bill  alleged  that  a  deed  was  given  merely  to  secure  a  debt,  and 
the  answers  admitted  that  the  grantors  made  a  certain  deed  in  writing,  of 
such  date  and  of  such  purport  and  effect  as  in  the  bill  mentioned  and  set 
forth — Held,  not  to  be  such  an  admission  of  the  nature  and  effect  of  the  deed 
as  to  preclude  all  inquiry  on  tlie  subject. 

2.  Complainant  held  a  mortgage  on  an  undivided  two-thirds  interest  in  cer- 
tain lands,  to  secure  debts  owing  to  him  by  the  two  holders  of  that  interest. 
To  induce  the  owner  of  the  remaining  tliird  to  join  in  an  absolute  conveyance 
of  the  premises  to  him,  he  agreed  to  personally  assume  two  prior  mortgages 
thereon. — Hddy  that  he  could  not  afterwards  have  such  assumption  expunged 
from  his  deed,  on  the  ground  of  fraud  or  mistake,  and  have  such  deed  declared 
to  be  a  mere  security  for  the  payment  of  the  debts  of  the  two  grantors. 


470  CASES  IN  CHANCERY.  [33  Eq. 


Brown  v.  Balen, 


Bill  for  relief.     On  fiual  hearing  on  pleadings  and  proofs. 
JI/?\  F.  Bergen,  for  complainant. 
3Ir.  N.  Runyon,  for  defendants. 

The  Chancellor. 

The  bill  is  filed  to  reform  a  deed  dated  March  20th,  1877, 
given  by  Charles  A.  Hunter,  William  J.  Leeds,  and  Martin  M. 
Thorn,  to  the  complainant,  Edward  G.  Brown,  for  land  in  the 
city  of  Plainfield.  The  rectification  sought  is  the  expunging  of 
the  following  clause : 

"This  conveyance  is  made  subject  to  two  mortgages  now  on  said  premises, 
one  held  by  Peter  Balen  for  seven  thousand  dollars,  the  other  held  by  Charles 
Hyde  for  four  thousand  five  hundred  dollars,  which,  with  the  interest  due 
thereon,  the  party  of  the  second  part  is  to  assume  and  pay,  as  a  part  of  the 
consideration  money  herein  mentioned." 

The  deed  expresses  a  consideration  of  $12,500.  The  ground 
stated  in  the  bill  for  the  relief  sought,  is,  in  brief,  that  the  deed 
was  in  fact  a  mortgage,  and  made  and  taken  only  as  such,  to 
secure  an  existing  indebtedness,  and  that  the  clause  in  question 
was  inserted  without  the  complainant's  knowledge  or  consent, 
and  by  mistake  of  the  scrivener,  or  fraud  on  the  part  of  the 
grantors.  The  bill  gives  the  following  account  of  the  giving  of 
the  deed:  that  at  the  time  of  the  making  of  the  deed,  Leeds 
aaid  Hunter  were,  and  for  a  long  time  prior  thereto  had  been, 
and  at  the  filing  of  the  bill  still  were,  indebted  to  the  complain- 
ant in  the  sum  of  $50,000,  or  thereabouts,  which  he  had  from 
time  to  time  lent  to  them ;  that  prior  to  the  making  of  the  deed, 
and  after  that  indebtedness  had  accrued,  it  was  agreed  between 
him  and  them  that  they  should  give  him  such  security  for  the 
indebtedness  as  they,  or  either  of  them,  were  able  to  give  or  fur- 
nish ;  that  in  pursuance  of  such  agreement  they  gave  him  the 
deed  in  question,  together  with  certain  mortgages  and  other  deeds 
for  that  purpose ;  that  at  the  time  or  times  of  the  delivery  of 
those  deeds,  it  was  expressly  agreed  and  stipulated  between  them 


6  Steav.]  FEBRUAEY  TERM,  1881.  471 

Brown  v.  Balen. 

and  him  that  the  deeds,  and  each  of  them,  and  the  property 
therein  conveyed,  and  the  mortgages,  should  be  held  by  him  as 
security  for  the  payment  of  the  money  due  to  him  as  before 
mentioned,  and  in  no  other  manner,  and  that  upon  the  payment 
of  the  money  the  deeds  should  be  void,  and  the  property 
described  in  them  reconveyed  by  him  to  the  grantors  or  parties 
named  by  them,  and  the  mortgages  canceled.  The  bill  further 
states,  in  the  same  connection,  that  at  the  time  of  the  making 
and  delivery  of  the  deed  in  question  the  complainant  held  the 
bond  of  Leeds  and  Hunter,  dated  December  7th,  1875,  for 
^15,000  and  interest,  secured  by  a  mortgage  on  two  undivided 
thirds  of  the  land  subsequently  conveyed  to  him  by  the  deed, 
which  mortgage  was  never  recorded ;  that  the  bond  and  mort- 
gage were  never  surrendered  or  delivered  up,  but  are  still  held 
by  him ;  that  they  were  given  to  secure  part  of  the  before-men- 
tioned indebtedness,  and  that  he  was  not  satisfied  with  a  mort- 
gage upon  two-thirds  of  the  property,  and  demanded  of  them 
that  they  should  give  him  security  on  the  whole  of  the  land,  and, 
it  is  added,  the  conveyance  in  question  was  made  in  compliance 
with  that  demand.  It  is  to  be  observed  that  one  of  the  grantors, 
Thorn,  who  was  the  owner  of  an  undivided  third  of  the  property, 
was  not  indebted  to  the  complainant.  The  answers  of  the 
defendant  deny  expressly  and  explicitly  that  the  clause  sought  to 
be  expunged  was  inserted  without  the  complainant's  knowledge 
or  consent,  or  by  fraud  or  mistake. 

At  this  stage,  it  will  be  convenient  to  dispose  of  a  point  made 
and  insisted  upon  by  the  complainant,  that  inasmuch  as  the  bill 
alleges  that  the  deed  was  given  for  security,  and  the  answers  all 
admit  that  the  grantors,  Hunter,  Leeds  and  Thorn,  and  their 
wives,  "  made  and  executed  a  certain  deed,  or  instrument  in 
writing,  of  such  date  and  of  such  purport  and  effect,  as  in  the 
complainant's  bill  is  mentioned  and  set  forth,"  this  is  an  admis- 
sion of  the  fact  that  the  deed  was  made  merely  as  and  for  a 
mortgage,  and  precludes  all  inquiry  on  the  subject.  But  that 
position  cannot  be  maintained.  The  bill  sets  forth  the  deed 
verbatim,  and  the  admission  under  consideration  is  merely  that 
the  instrument  was  given,  and  without  admitting  or  denying  that 


472  CASES  IN  CHANCERY.  [33  Eq. 

Brown  v.  Balen. 

it  was  exactly  as  stated  in  the  bill,  conceding  tliat  it  was  indeed 
substantially  so. 

The  proof  is  that  the  deed  was  taken  as  an  absolute  convey- 
ance of  the  property.  The  testimony  of  the  complainant  on 
this  point  is  subject  to  much  criticism.  He  at  first  says  that  the 
proposition  to  convey  to  him  came  from  Leeds  and  Hunter,  who 
were  moved  to  make  the  conveyance  by  the  pecuniary  difficulties 
they  were  in ;  that  he  never  read  the  deed  and  did  not  think  it 
worth  recording.  To  the  question  "  How  did  you  happen  to  get 
that  deed  ?"  he  answers : 

"  They  wanted  to  give  it  to  me  ;  they  were  getting  into  some  trouble  with 
some  debts  that  they  owed,  and  they  thought  they  had  better  give  me  a  deed 
of  it;  I  don't  know  that  I  ever  read  it  over  ;  Mr.  Hunter  might  have  read  it 
to  me ;  I  don't  remember  his  ever  reading  it,  but  still  he  might  have  done  so; 
I  did  not  have  it  recorded,  because  I  did  not  think  it  worth  recording;  I  knew 
that  other  creditors  of  Leeds  and  Hunter  were  pressing  them  for  money  at  the 
time  the  deed  was  given." 

Now  this  is  not  only  iu  contrariety  to  his  subsequent  admission 
in  his  testimony,  that  he  found  fault  because  the  mortgage  for 
$15,000  was  not  on  the  whole  property,  and  they  said  they  would 
giv^e  him  a  deed  for  the  whole,  but  it  is  in  direct  conflict  with 
the  statement  of  the  bill  as  to  the  origin  of  the  deed.  The  bill 
says  that  he  was  not  satisfied  with  a  mortgage  on  two-thirds  of 
the  land,  and  demanded  of  Leeds  and  Hunter  that  they  should 
give  him  security  upon  the  whole  of  the  land,  and  that  the  deed 
was  made  in  compliance  with  that  demand.  In  this  connection 
it  may  be  remarked  that  in  his  testimony  he  says  he  cared 
nothing  for  the  fact  that  the  mortgage  was  only  on  two-thirds  of 
the  property,  and  that  he  considered  the  mortgage  as  good  as  the 
deed,  for  there  was,  in  his  judgment,  nothing  in  the  property 
over  the  Balen  and  Hyde  mortgages.  But  the  letter  written  by 
him  to  Mr.  Hyde,  dated  April  5th,  1877  (the  deed  was  made  iu 
March  of  that  year),  is  cogent  and  conclusive  evidence  as  to  the 
character  of  the  conveyance,  and  is  proof  that  he  regarded  it  as 
a  deed  for  the  land  to  him  as  the  purchaser  thereof,  and  that 
under  it  he  would  be  the  absolute  owner  of  the  property.  It  is 
as  follows : 


6  Stew.]  FEBRUARY  TERM,  1881.  473 

Brown  v.  Balen. 

"I  have  purchased  from  Messrs.  Leeds  and  Hunter,  and  Martin  M.  Thorn, 
the  property  on  Water  street  and  Westervelt  avenue,  Plainfield,  subject  to 
two  mortgages  of  $7,000  and  $4,500,  respectively,  the  latter  held  by  yourself, 
and  the  accrued  interest  on  the  same,  provided  there  are  no  other  claims 
against  the  property.  I  have  been  very  busy,  but  just  as  soon  as  I  have  the 
title  examined  and  find  it  all  right,  I  will  see  that  the  interest  is  satisfactorily 
adjusted. 

The  eviflenee  shows  that  the  complainant  sought  and  obtained 
the  conveyance  as  a  deed  absolute,  and  that  he  insisted  upon 
having  it  becau.se  he  could  thus  acquire  the  interest  of  Thorn  in 
the  ownership  of  the  property.  Hunter  testifies  that  the  com- 
plainant said  to  him  that  this  property  was  the  only  one  Leeds 
and  Hunter  had  which  was  worth  anything,  and  he  wanted  them 
to  get  him  a  deed  for  the  whole  of  it ;  that  Hunter  told  the  com- 
plainant that  they  could  not  do  that,  that  Thorn  would  not  give 
up  his  interest.  He  also  swears  that  in  a  subsequent  conversa- 
tion he  told  the  complainant  that  if  he.  Brown,  would  assume 
the  responsibility  of  the  mortgages  on  the  property  (referring  to 
the  Balen  and  Hyde  mortgages),  he  thought  Thorn  would  give 
up  his  interest,  and  he  adds,  "  Mr.  Brown  consented  to  that  and 
said  that  he  would  take  it  and  be  responsible  for  the  claims 
[meaning  the  two  mortgages]  on  it,  and  pay  up  the  interest  right 
away."  He  says  he  saw  Thorn  on  the  subject,  and,  in  view  of 
the  assumption,  the  latter  consented  to  convey  his  interest  to 
Brown.  He  further  testifies  that  it  was  perfectly  understood 
between  the  complainant  and  himself  that  the  former's  assump- 
tion of  the  mortgages  was  the  consideration  to  be  given  to  Thorn 
for  giving  up  his  interest  in  the  property.  He  swears  also  that 
the  complainant  requested  him  and  Leeds  to  get  him  a  deed  for 
the  property,  and  adds,  "  not  as  security ;  he  wanted  the  prop- 
erty absolutely."  That  the  complainant  agreed  to  assume  the 
mortgages  is  positively  sworn  to  by  Hunter,  who  conducted  the 
negotiation  of  the  transaction  for  himself  and  Leeds.  Thorn,  as 
before  stated,  owed  the  complainant  nothing.  He  did  not  see  or 
communicate  with  him,  except  through  Hunter,  in  the  transac- 
tion. It  is  proved  that  the  consideration  of  his  conveyance  of 
his  interest  in  the  property  was  the  complainant's  assumption  of 
the  Balen  and  Hyde  mortgages,  and  that    alone.     As  to  him, 


474  CASES  IN  CHANCERY.  [33  Eq. 

Gill  V.  R  oberts. 

then,  there  is  no  pretence  either  of  mistake  or  fraud,  and  as  to 
Hunter  and  Leeds,  the  evidence  establishes  none.  Tlie  com- 
plainant knew  the  contents  of  the  deed  when  he  accepted  it. 
Hunter  swears  that  the  complainant  read  it  in  his  presence,  and 
after  reading  it,  said  that  before  he  accepted  it,  he  wanted  to 
know  whether  Hyde's  mortgage  could  stand,  and  when  Hunter 
assured  him  that  it  could,  he  refused  to  take  his  word  for  it,  but 
went  out  that  day  from  New  York  to  Plainfield,  and  saw  Mr. 
Hyde  on  the  subject.  After  seeing  Hyde,  he  said  he  would  take 
the  property.  The  complainant,  while  he  denies  that  he  read 
the  deed  himself,  admits  that  Hunter  may  have  read  it  to  him. 
The  complainant  has  failed  to  establish  his  right  to  the  relief 
which  he  seeks.     The  bill  will  be  dismissed,  with  costs. 


John  Gill,  surviving  executor  &c., 

V. 

Haeeiet  Roberts  et  al. 

1.  A  testator  directed  his  executors  to  divide  the  income  from  his  estate  as 
follows :  one-third  to  his  wife ;  one-third  to  her  then  unborn  child,  if  it  should 
live,  and  the  other  third  to  his  son  Benjamin ;  that  if  either  child  should  die 
or  the  unborn  one  should  not  be  born  alive,  the  survivor  should  receive  the 
other's  share ;  that  if  both  children  should  not  attain  twenty-one,  or  should 
die  without  leaving  lawful  issue,  their  estates  should  go  to  testator's  brother 
David's  children,  equally ;  that  the  share  of  each  child  should  be  paid  to  him 
on  his  attaining  his  majority,  and  they  should  also  receive  their  mother's 
share  at  her  death. 

Testator  died  in  1829  ;  his  posthumous  child  was  born  alive,  but  died  in  in- 
fancy in  1830 ;  Benjamin  attained  his  majority,  and  died  in  1853,  unmarried, 
without  issue  and  intestate.  Testator's  brother  David  had  two  children.  The 
widow  died  in  1879. — Held,  that  David's  children  took  the  share  left  to  the 
widow,  not  under  the  will,  but  as  next  of  kin  of  Benjamin. 


Bill  of  interpleader.     On  final  hearing. 

Mr.  A.  C.  Scovd,  for  complainant, 

3Ir.  A.  Browning,  for  defendant  Samuel  E.  Clement. 


6  Stew.]  FEBRUARY  TERM,  1881.  475 

Gill  V,  Roberts. 

The  Chancellor. 

Jacob  Roberts,  late  of  Gloucester  county,  deceased  (he  died 
April  27th,  1829),  by  his  will  of  April  24th,  1829,  after  certain 
bequests,  directed  his  executors  to  sell  his  undivided  interest  in  a 
epecified  tract  of  laud,  and  then  directed  them  to  sell  all  the  re- 
mainder of  his  estate,  real  and  personal,  as  soon  as  they  might 
think  best,  and  directed  that  then,  after  paying  all  his  just  debts, 
they  should  put  the  balance  of  his  estate  at  interest ;  and  he  dis- 
posed of  the  annual  interest  therefrom  as  follows  :  his  then 
(second)  wife  was  to  receive  one-third  in  lieu  of  her  dower,  and 
her  unborn  child,  if  it  should  live,  was  to  receive  a  third,  and 
the  testator's  son  Benjamin  (then  a  minor),  the  other  third. 
And  he  provided  that  if  either  of  his  children  "should  die,"  or 
his  wife's  child  should  not  be  born  alive,  the  "survivor"  should 
receive  the  other's  share,  and  if  both  of  the  children  should  not 
live  to  attain  to  majority,  or  should  die  without  leaving  lawful 
issue,  their  "estates"  should  go  to  his  brother  David's  children, 
in  equal  shares.  And  further,  that  when  his,  the  testator's, 
children  should  arrive  at  majority  they  should  receive  their  thirds, 
principal  and  interest,  and  also  their  "  mother's  "  (his  widow's) 
share  of  the  principal  at  her  death,  but  not  before ;  but  if  either 
of  them  should  die,  the  survivor  should  receive  the  other's  share, 
and  if  neither  of  them  should  live  to  that  period,  their  shares 
should  go  to  his  brother  David's  children,  or  the  survivor  of 
them.  The  testator's  wife's  child  was  born  alive,  but  died  in* 
infancy,  May  17th,  1830.  Benjamin,  the  testator's  eldest  child, 
lived  to  attain  his  majority  and  died  January  21st,  1853,  unmar- 
ried, without  issue  and  intestate.  The  testator's  brother  David 
had  two  children,  John  K.  Roberts  and  Mrs.  Clement.  The 
latter  died  in  1858  leaving  a  husband  (still  surviving)  and  two 
children.  Her  husband  is  her  administrator.  The  testator's 
widow  died  in  1879.  John  K.  Roberts  died  in  1871,  intestate, 
leaving  a  widow  and  children.  The  question  presented  is 
whether  Mr.  Clement  is  entitled  to  the  share  of  his  wife  in  the 
third  of  the  testator's  estate,  of  which  his  widow  was  to  have  the 
interest.  Benjamin,  when  he  died,  was  entitled  under  the  will  to 
the  principal  of  the  fund,  subject  to  the  right  of  the  widow  to 


476  CASES  IN  CHANCERY.  [33  Eq. 

Bonham  v.  Bonham. 

the  interest  of  it  for  life.  When  he  died,  Mrs.  Clement  and  John 
K.  Roberts,  her  brother,  became  entitled  to  it  in  like  manner  as 
his  next  of  kin.  They  did  not  take  under  the  will,  but  as  next 
of  kin  of  Benjamin,  their  cousin.  The  fund  was  personal 
property.  On  Mrs.  Clement's  death  her  husband,  jure  mariti, 
became  entitled  to  receive  her  share  of  it,  and  he  is  entitled  to 
have  it  paid  to  him  as  her  administrator.  The  share  of  John 
K.  Roberts  is  of  course  distributable,  according  to  the  statute  of 
distributions,  among  his  widow  and  children. 


Ezekiel  E.  Bonham  et  al. 

V. 

Ann  Bonham  et  al. 


A  testator  gave  to  his  wife  the  use  and  income  of  his  house  and  lands,  for 
her  life,  and  directed  his  executors  to  supply  her  out  of  his  estate  with  every- 
thing that  she  might  need  or  desire  for  her  comfort,  sustenance  and  happiness. 
He  then  gave  a  specific  legacy  to  S. ;  several  pecuniary  legacies  to  others,  and 
a  devise  of  his  house  and  lands,  after  his  widow's  death,  to  the  trustees  of  a 
church,  as  a  parsonage,  on  certain  conditions. — Held, 

(1)  That  the  executors  must  resort  to  the  principal  of  the  personalty,  for  the 
widow's  support,  if  the  income  thereof  be  insufficient. 

(2),  That  the  payment  of  the  general  legacies  must  be  postponed  until  after 
the  widow's  death,  and  would  be  subject  to  ratable  abatement  if  there  should 
be  a  deficiency. 

(3)  That  the  specific  legacy  must  be  paid  now  and  without  abatement. 


Bill  for  construction  of  will  and  directions  to  executors. 

Messrs,  Voorhees  &  Large,  for  complainants. 

The  Chancellor. 

"William  Bonham,  deceased,  late  of  Hunterdon  county,  died  in 
March,  1872,  leaving  a  last  will  and  testament,  which  has  been 


6  Stew.]  FEBRUARY  TERM,  1881.  477 

Bonham  v.  Bonham. 

proved  by  the  complainants,  the  executors  thereof  appointed. 
They  bring  this  suit  for  construction  of  the  will,  and  for  direc- 
tions in  the  discharge  of  their  duty  as  executors  in  that  connec- 
tion. By  the  will,  the  testator  first  directed  that  all  his  just 
debts  and  funeral  expenses  should  be  promptly  paid  by  his 
executors,  and  that  the  legacies  should  be  discharged  as  soon  as 
circumstances  would  permit,  and  in  the  manner  directed  by  the 
will.  He  theu  gave  to  his  wife  all  his  household  furniture 
which  she  might  need  or  choose  to  select,  for  her  use,  and  he 
also  gave  her  the  use  of  one  cow.  Also  the  occupancy,  use, 
improvement  and  income  of  his  dwelling-house  and  the  laud 
and  its  appurtenances,  to  have  and  to  hold  the  same  to  her  for 
and  during  the  term  of  her  natural  life ;  and  he  thereby  author- 
ized and  directed  his  executors  to  provide  for  and  supply  her  out, 
of  his  estate,  with  everything  that  she  might  need  or  desire  for 
her  comfort,  sustenance  and  happiness.  He  then  gave  to  Rebecca 
C.  Warford  $1,200  and  his  gold  watch,  and  a  bed  and  bedding, 
and  requested  that  she  would  continue  to  live  with  his  wife  dur- 
ing her  lifetime,  if  her  health  and  circumstances  would  permit. 
He  then  gave  to  John  Sutton  (his  nephew)  a  bond  and  mort- 
gage of  $530  ;  to  his  three  nieces,  Dentilia  Sutton,  Mary  Sutton 
and  Sarah  Hunt,  and  his  nephew,  William  B.  Sutton,  $200  each ; 
to  six  persons,  children  of  his  deceased  nephew,  John  Bonham, 
$200  each,  as  they  should  become  of  age,  and  in  case  of  the  death 
of  either  of  them  before  arriving  at  lawful  age,  the  legacy  given 
to  the  decedent  was  to  go  to  the  survivors  of  them ;  to  two  per- 
sons, children  of  Uriah  Bonham,  deceased,  he  gave  $200;  to 
another  one,  a  daughter  of  Uriah  Bonham,  and  to  another,  a  son 
of  Uriah,  he  gave  $100 ;  to  two  persons,  daughters  of  Isaac  M. 
Keyser,  deceased,  he  gave  $200  each,  on  their  arriving  at  lawful 
age,  and  provided  that  iu  case  of  the  death  of  either  before  that 
time,  the  survivor  should  take  both  legacies ;  and  he  gave  to  a 
son  of  Joel  W.  Salter  ,$100,  on  his  attaining  to  his  majority. 
The  testator  theu  made  the  following  devise : 

"  After  tlie  decease  of  my  wife,  I  give,  devise  and  bequeath  my  dwelling- 
house  and  lot,  containing  one  acre  of  land,  as  originally  purchased  by  me  of 


478  CASES  IN  CHANCERY.  [33  Eq. 

Bonham  v.  Bonham, 

Joel  W.  Salter,  and  all  its  appurtenances,  to  the  trustees  of  the  Rosemont  Pres- 
byterian Church,  with  this  object  in  view  :  to  assist  in  building  up  the  cause, 
and  to  help  in  advancing  the  Redeemer's  kingdom  on  earth  ;  the  same  to  be 
used  as  a  parsonage  or  a  home  for  the  minister  of  the  aforesaid  church,  to 
have,  and  to  be  held  by  the  said  trustees,  or  their  successors  in  office,  so  long 
as  there  shall  be  sufficient  interest  manifested  on  the  part  of  the  congregation 
and  friends  of  the  aforesaid  church  to  warrant  the  assurance  that  the  gift  is 
appreciated  in  the  proper  spirit ;  but,  should  they  from  any  cause  neglect  to 
have  a  minister  for  the  space  of  one  year,  then  the  whole  claim  to  be  forfeited. 
And  furthermore,  if,  at  the  expiration  of  ten  years  of  faithfulness  on  the  part 
of  the  minister  and  people,  as  above  directed,  there  should  not  be  a  strong 
evidence  of  spiritual  prosperity  and  an  encouraging  increase  in  church  mem- 
bership, and  a  fair  prospect  of  benefiting  the  community  in  general,  then,  in 
such  case,  this  bequest  shall  be  withdrawn  by  my  executors,  who  shall  proceed 
to  advertise  and  sell  the  same  according  to  law,  the  proceeds  to  be  equally 
divided  between  Ezekiel  E.  Bonham  and  Rebecca  C.  "VVarford." 

He  then  directed  that  the  rest  of  the  land  be  sold  after  the 
death  of  his  wife,  and  gave  all  the  residue  of  his  estate  to 
Ezekiel  E.  Bonham  and  Rebecca  C.  Warford. 

The  personal  estate  amounts  to  $5,735.58,  and  the  interest  of 
it  has,  in  some  years  since  the  testator's  death,  proved  insufficient 
to  properly  support  his  widow,  even  in  the  most  prudent  and 
economical  manner,  and  her  increasing  infirmities  (she  is  about 
ninety-one  years  old,  and  very  lame  and  nearly  blind)  will  require 
that  all  the  interest  and  income  of  the  estate,  if  not  part  of  the 
principal,  be  expended  for  her  comfortable  maintenance.  Some 
of  the  legatees  have  demanded  payment  of  their  legacies  and 
threaten  suit.  The  bond  and  mortgage  bequeathed  to  Johu 
Sutton  remain  in  the  hands  of  the  executors.  The  bill  states 
that  the  Rosemont  Presbyterian  Church  has  had  no  pastor  for 
the  last  ten  years,  nor  have  any  services  been  held  in  their  meet- 
ing-house, under  the  organization  known  as  the  Rosemont  Pres- 
byterian Church,  for  at  least  ten  years  past,  and  that  during  all 
that  time,  with  perhaps  a  single  exception,  the  meeting-house 
has  remained  closed,  and  the  congregation  virtually  disbanded, 
although  there  "remain"  (presumably,  from  a  former  full  board) 
two  gentlemen,  who  act  as  trustees  thereof.  The  corporation  is 
not  made  a  party  to  this  suit,  though  two  persons  are,  as  trustees 
of  the  church.     There  is  no  answer,  and  there  is  no  proof  in  the 


6  Stew.]  FEBRUARY  TERM,  1881.  479 

Bonham  v.  Bonham. 

cause,  but  the  questions  are  submitted  on  the  part  of  the  execu- 
tors alone ;  there  being  no  appearance  on  the  part  of  any  one 
else;  and  on  the  allegations  of  the  bill,  merely. 

The  questions  submitted  are,  Whether  the  general  legacies  are 
payable  before  the  death  of  the  testator's  widow ;  whether  the 
gift  of  the  bond  and  mortgage  to  John  Sutton  takes  effect  imme- 
diately (the  debts  have  been  paid),  or  is  to  be  postponed  until 
after  the  death  of  the  widow,  and  the  interest  thereof,  in  the 
meantime,  applied  to  her  support,  if  necessary ;  whether  the 
executors,  if  the  general  legacies  are  not  to  be  paid  until  after 
the  widow's  death,  are  at  liberty  to  expend  the  principal,  or  any 
part  of  it,  if  necessary  for  the  widow's  support ;  whether-  the 
general  legacies  will,  if  there  be  not  enough  to  pay  them  in  full, 
abate  ratably ;  and  whether  the  devise  to  the  church  is  valid. 

The  testator  authorizes  and  directs  his  executors  to  "  provide 
for  and  supply  his  wife  out  of  his  estate,  with  everything  that 
she  may  need  or  desire  for  her  support,  sustenance  and  happi- 
ness." This  provision  is  in  the  form  of  a  direction  to  his  execu- 
tors, whom  it  charges  with  a  duty  which  is  to  be  discharged 
notwithstanding  it  will  be  necessary  to  expend  more  than  the 
annual  income  of  the  personal  estate  to  do  it.  If,  therefore,  the 
annual  income  is  insufficient  for  the  proper  performance  of  the 
duty  the  executors  should  apply  so  much  of  the  principal  as  may 
be  necessary  for  the  purpose.  It  follows  that  the  payment  of 
the  general  legacies  is  to  be  postponed,  under  the  circumstances 
of  the  case,  until  the  death  of  the  widow,  and  if  the  personal 
estate  shall  then  prove  insufficient  to  pay  them  in  full,  they  will 
abate  ratably.  Titus  v.  TUm,  11  C.  E.  Gr.  111.  The  gift  of 
the  bond  and  mortgage  to  John  Sutton  is  a  specific  legacy,  and 
is  not  subject  to  abatement.  Nor  is  there  any  ground  for  hold- 
ing that  the  enjoyment  of  it  is  to  be  postponed  until  the  death  of 
the  widow.  The  devise  to  the  trustees  of  the  church  does  not 
take  effect  until  the  death  of  the  widow.  There  is  not  only  no 
necessity  for  passing  upon  it  at  this  time,  but  it  would  not  be 
proper  to  do  so. 


480  CASES  IN  CHANCERY.  [33  Eq. 


Thompsou  V.  Fisler. 


Wlluam  J.  Thompson  et  al. 

V. 

Samuel  F.  Fisler  et  ux.  et  al. 

A  defendant  to  a  creditor's  bill,  after  having  been  admitted  as  a  co-com- 
plainant, may  have  tlie  conduct  of  the  cause  committed  to  himself,  on  the 
ground  of  great  delay  on  complainant's  part,  and  on  terms  aa  to  indemnifying 
complainant  against  future  costs  in  the  cause. 


Creditor's  bill.  Motion  to  give  to  creditor,  who  has,  on  appli- 
cation, been  made  a  party,  the  conduct  of  the  cause  because  of 
the  delay  of  the  complainants  in  prosecuting  it. 

Mr.  T.  E.  French,  for  the  motion. 

Mr.  8.  M.  Dickinson,  contra. 

The  Chancellor. 

The  bill  was  filed  by  the  complainants  as  creditors  of  Samuel 
F.  Fisler,  in  behalf  of  themselves  and  all  others  of  his  creditors 
who  should  come  in  and  contribute  to  the  expenses  of  the  suit. 

Note. — Whenever  the  complainant  delays  his  suit  unreasonably,  ita  prose- 
cution may  be  committed  to  any  other  party  in  the  cause,  whether  complain- 
ant or  defendant,  as  in  case  of  a  creditor's  bill  {Powell  v,  Walworth,  2 
Madd.  183  {4S6) ;  Price  v.  North,  2  You.  &  Coll.  628) ;  although  not  interested 
in  the  whole  of  the  decree  {Edmunds  v.  Adand,  5  Madd.  31.  See  Lines  v. 
Lansing,  7  Page  583) ;  or  an  administrator's  suit  {Fleming  v.  Prior,  5  Madd. 
423;  Williams  v.  Chard,  5  DeO.&  Sm.  9;  Hutchinson's  Trusts,  1  Dr.  &  Sm.  30) ; 
or  next  of  kin,  {Sims  v.  Ridge,  3  Meriv.  4^8) ;  or  in  proceedings  for  an  account 
(JECallett  V.  Hallett,  2  Paige  22 ;  Alvanley  v.  Kinnaird,  8  Jwr.  114) ',  or  in  prosecu- 
ting a  reference  ( Quac/cenbush  v.  Leonard,  10  Paige  131.  See  Warren  v.  Shaw, 
43  Me.  4^9;  Brosardv.  Lester,  2  McCord  Ch.  419). 

But  good  cause  must  be  shown  {Jendudne  v.  Agate,  5  Rusa.  283),  and  the  order 
is  appealable  ( Wyatt  v.  Sadler,  5  Sim.  4^0), 

For  proceedings  after  the  order,  see  Bennett  v.  Baxter,  10  Sim,  4^7, 


6  Stew.]  FEBRUARY  TERM,  1881.  481 

Thompson  v.  Fisler. 

The  petitioner,  a  judgment  creditor,  was  made  a  defendant,  and 
was  duly  subpoenaed  to  answer.  The  bill  was  filed  in  March, 
1877,  and  the  subpoena  was  returnable  in  April  following.  All 
of  the  defendants  but  two,  who  were  non-residents,  were  served. 
As  to  them,  the  usual  proceedings  by  order  of  publication  were 
taken,  and  they  were  called  upon  to  answer  on  or  before  June 
18th,  1877.  No  further  proceedings  on  the  part  of  complain- 
ants, except  the  taxation  on  the  5th  of  June,  1877,  of  costs  as 
on  dismissal,  were  taken  in  the  cause.  In  February,  1881,  the 
petitioner  applied  to  be  admitted  as  a  complainant,  and  it  was  so 
ordered.  He  now  asks  to  be  permitted  to  have  the  conduct  of 
the  cause  committed  to  him  on  such  equitable  terms  as  the  court 
may  see  fit  to  impose.  The  application  is  based  on  the  delay  for 
almost  four  years,  on  the  part  of  the  complainants,  to  proceed 
with  the  suit.  It  does  not  appear  that  their  claim  has  been  satis- 
fied. No  decree  of  dismissal  was  ever  entered.  While  it  is  true 
that  the  petitioner  would  be  at  liberty  to  file  a  bill  for  himself, 
it  appears  to  me  to  be  clear  that  under  the  circumstances  of  the 
case,  he  is  at  liberty  to  proceed  with  the  prosecution  of  this  suit, 
to  which,  by  the  invitation  of  the  complainants,  he  has  become 
a  party  complainant  with  them.  It  is  indeed  established  that  a 
creditor  who  files  such  a  bill  has  complete  and  absolute  dominion 
over  it  until  decree,  and  he  may  have  the  bill  dismissed  on 

A  complainant  cannot  dismiss  his  bill  to  the  prejudice  of  a  defendant,  and 
after  appearance  (Bank  of  South  Carolina  v.  Base,  1  Bich.  Eq.  ^92 ;  Bethia  v. 
McKay,  Cheves  Eq.  93;  HaiMs  Case,  Id.  203,  211;  Ancker  v.  Levy,  3  Strobh, 
Eq.  211;  McClain  v.  French,  2  Hon.  U7 ;  Hall  v.  McPherson,  3  Bland  529  ; 
Allen  V.  Allen,  U  Ark.  666;  Wilder  v.  Boynton,  63  Barb.  547 ;  Pacific  Co.  v. 
Leiding,  7  Abb.  Pr.  {N.  S.)  37;  Stew.  N.  J.  Dig.  Equity  V  (e).  But  see  Bid-, 
lock  v.  Zilley,  1  Hal.  Ch.  77  ;  State  Bank  v.  Bell,  S  Hal.  Ch.  372;  Smith  v.  Smitft; 
2  Blackf.  232;  Kean  v.  Lathrop,  58  6a.  355). 

One  of  several  complainants  cannot  move  to  dismiss  {Fagan  v.  Fagan,  15 
Ala.  335) ;  but  one  defendant  may  [De  Imze  v.  Loder,  3  Edw.  Ch.  419). 

A  dismissal  will  not  be  ordered  where  complainant's  delay  was  caused  by 
defendant  (Person  v.  Nemtt,  32  3fiss.  ISO;  Dixon  v.  Butherford,  26  Ga.  153 ; 
Doyle  V.  CFarrell,  5  Bob.  (N.  Y.)  64O ;  Doyle  v.  Devane,  Freem.  Ch.  345;  Me- 
Vicker  v.  Filer,  24  Mich.  24I.  See  Norton  v.  Kosboth,  Hopk.  101 ;  Bigelow  v, 
Roumelt,  9  C.  E.  Gr.  115;  Warren  v.  Shaw,  43  Me.  4^9;  Eddings  v.  Oillespie, 
12  Hcisk.  54s  ;  Gilbert  v.  Campbell,  1  Hannay  ^7^).— Rep 

31 


482  CASES  IN  CHANCERY.  [33  Eq. 


Mutual  Life  Insurance  Co.  v.  Goddard. 


receiving  satisfaction  for  his  claim  and  the  costs  of  suit.  1  Dan. 
Ch.  P}\  235  ;  limes  v.  Lansing,  7  Paige  583 ;  Pemberton  v.  Top- 
Jiam,  1  Beav.  316 ;  Handfovd  v.  Storie,  2  Sim.  &  St.  106  ;  Wood 
V.  Westfall,  Younge  305 ;  Maitison  v.  Demurest,  1  Rob.  (iV.  F.) 
717;  McDougald  v.  Dougherty,  11  Geo.  570 ;  Stephenson  v. 
Taverners,  9  Gratt.  398;  2  Barb.  Ch.  Pr.  169.  And  the  debtor 
defendant  may,  before  decree,  obtain  a  dismissal  on  those  terms. 
But  such  absolute  dominion  over  the  suit  cannot  be  exercised 
by  the  original  complainant  alone  if  there  be  other  complainants. 
In  such  case,  if  the  defendant  debtor  would  obtain  a  dismissal, 
he  must  satisfy  all  of  them.  If  before  decree,  while  the  suit  is 
still  pending,  a  creditor  sees  fit  to  come  in,  and  asks  to  be  made 
a  complainant,  contributing  to  the  expenses  of  the  suit,  I  do  not 
see  on  what  principle  his  prayer  can  be  denied.  And  when  he 
has  taken  his  place  as  a  co-complainant,  he  should,  of  course,  be 
at  liberty  to  proceed  with  the  prosecution  of  the  suit,  if  the 
original  complainant  unduly  delays.  A  creditor  who  is  permitted 
to  come  in  as  a  co-complaiuaut  in  such  a  case  as  this,  is  author- 
ized to  prosecute  the  suit.  Strike's  Case,  1  Bland  57,  85 ;  Wil- 
liamson V.  Wilson,  Id.  4-18,  4^4-  >  Bank  v.  Dugan,  2  Bland  S54- 
In  this  case,  there  was  no  opposition  to  the  application  that  the 
petitioner  be  made  a  co-complainant,  and  the  original  complain- 
ants make  no  objection  to  the  granting  of  the  present  motion. 
The  application  will  be  granted,  but  on  terms  that  the  petitioner 
indemnify  the  original  complainants  against  all  future  costs  of 
the  suit. 


The  Mutual  Life  Insueance  Company  op  New  Yoek 

V. 

"William  Goddard  and  others. 

1.  A  eheriflfs  sale  made  by  virtue  of  process  issuing  out  of  this  court,  may 
be  set  aside  on  petition,  and  without  bill,  even  after  the  sale  has  been  carried 
into  effect  by  the  delivery  of  a  deed. 


6  Steav.]  FEBEUARY  TEEM,  1881.  483 

Mutual  Life  Insurance  Co.  v.  Goddard. 

2.  A  person  whose  property  has  been  sold  at  judicial  sale,  to  his  injurv, 
may  always,  if  he  applies  promptly,  and  is  without  fault,  have  the  sale  set 
aside  upon  showing  that  he  was  prevented  from  attending  the  sale  by  fraud, 
mistake  or  accident. 

3.  A  sale  made  in  violation  of  a  promise  to  adjourn  to  a  future  day  will  be 
set  aside. 


On  application  to  set  aside  a  sheriff's  sale,  heard  on  petition, 
answer  and  depositions. 

Mr.  William  P.  3Iiller,  for  petitioners. 

Mr.  Richard  W.  Parker,  for  complainants. 

The  Yice-Chancellor. 

This  is  an  application  to  set  aside  a  sale  of  mortgaged  premises 
made  by  virtue  of  process  issued  out  of  this  court.  The  com- 
plainants were  the  purchasers,  and  have  received  a  deed  for  the 
lauds.  The  parties  claiming  to"be  aggrieved  apply  for  relief  by 
petition.  This  mode  of  procedure  is  challenged  by  the  complain- 
ants, who  say  that  after  a  sale,  made  in  execution  of  the  process 
of  this  court,  has  been  carried  into  effect  by  the  execution  of  a 
deed,  the  power  of  the  court  is  exhausted,  and  the  transaction  so 
completely  ended  that  it  cannot  be  successfully  impugned  except 
by  an  original  suit,  regularly  brought  in  the  ordinary  way. 
This  objection  cannot  prevail.  It  was  very  fully  considered  by 
Chancellor  Williamson  in  Campbell  v.  Gardner,  3  Stock.  4^8, 
and  held  to  be  untenable ;  and  since  then  the  practice  sanctioned 
by  that  adjudication  has  been  so  frequently  approved  by  all  of 
his  successors  that  it  must  now  be  considered  to  be  firmly  estab- 
lished. 

The  petitioners  claim  relief  on  the  ground  that  they  were  pre- 
vented from  attending  the  sale,  and  also  from  taking  such  other 
steps  as  were  necessary  for  the  protection  of  their  interests,  by 
the  promise  of  the  complainants  that  the  sale  should  not  be  made 
on  the  day  on  which  it  was  made,  but  should  be  adjourned  to  a 
future  day.  There  can  be  no  doubt  that  a  person  whose  prop- 
erty has  been  sold,  at  judicial  sale,  to  his  injury,  may  always,  if 


484  CASES  IX  CHANCERY.  [33  Eq. 

Mutual  Life  Insurance  Co.  v.  Goddard. 

he  applies  promptly,  and  is  without  fault,  have  the  sale  set  aside 
upon  showing  that  he  was  prevented  from  attending  the  sale  by 
fraud,  mistake  or  accident.  This  rule  is  so  familiar  that  it  need 
not  be  vouched  for  by  the  citation  of  authorities.  Chancellor 
Williamson,  in  the  case  just  cited,  held  that  the  party  aggrieved 
in  such  case,  in  order  to  entitle  himself  to  relief,  need  not  show 
that  he  had  been  misled  by  a  person  connected  with  the  sale, 
but  if  it  appeared  that  he  had  been  misadvised  by  a  stranger,  to 
whom  he  had  applied  for  information,  sufficient  ground  might 
exist  for  invalidating  the  sale. 

The  facts  upon  which  this  application  rests  are  undisputed. 
The  sale  was  made  August  31st,  1880.  Some  days  prior  to  that 
date,  the  solicitor  of  the  complainants  promised  the  solicitor  who 
was  then  acting  for  the  petitioners,  that  the  sale  should  be  ad- 
journed from  August  31st  to  September  7th,  1880,  and,  imme- 
diately after  making  this  promise,  he  directed  one  of  his  clerks, 
in  the  presence  of  the  solicitor  of  the  petitioners,  to  see  that  the 
sale  was  adjourned.  The  arrangement  made  by  the  solicitors 
provided  for  further  adjournments,  conditional  on  the  payment 
of  certain  sums  of  money,  but  the  promise  to  adjourn  from  Au- 
gust 31st  to  September  7th  was  unconditional — that  was  to  be 
made  in  any  event.  The  petitioners  were  at  once  informed  that 
the  sale  would  be  adjourned,  and  neither  they  nor  their  solicitor 
attended  at  the  place  of  sale  on  the  31st  of  August.  The  person 
directed  to  attend  to  the  adjournment  of  the  sale  did  not  have  it 
adjourned  ;  so  far  as  appears,  he  did  not  speak  to  the  sheriff  on 
the  subject.  The  solicitor  of  the  complainants  did  not  attend 
the  sale,  nor  was  he  at  his  office  on  the  day  of  the  sale.  An 
agent  of  the  comj)lainants,  who  has  charge  of  their  real  estate  in 
this  state,  called  at  the  office  of  their  solicitor  on  the  day  of  the 
sale,  and  shortly  before  it  took  place,  and  being  there  in- 
formed that  no  arrangement  for  a  further  adjournment  had  been 
made,  he  proceeded  to  the  place  of  sale  and  directed  the  sheriff 
to  sell.  A  sale  was  made,  and  this  agent  bid  off  the  property 
for  the  complainants  at  a  sum  representing  less  than  one-half 
of  its  value.  The  deed  made  to  the  complainants  bears  date  on 
the  day  of  sale,  and  it  appears  that  the  complainants  took  posses- 


6  Stew.]  FEBRUARY  TERM,  1881.  485 

Mutual  Life  Insurance  Co.  v.  Goddard. 

sion  of  a  part  of  the  property  ou  the  same  day,  and  have  since 
then  received  its  rents. 

In  view  of  these  facts,  it  is  obvious  the  court  cannot  allow 
this  sale  to  stand.  It  was  made  in  violation  of  a  promise  which 
the  petitioners  had  a  right  to  believe  would  be  kept.  Their  con- 
duct shows  that  they  did  believe  it  would  be  kept.  It  may  be 
that  its  violation  was  accidental,  but  the  violation  is  none  the 
less  harmful  on  that  account,  and  its  force,  as  a  ground  for 
equitable  relief,  is  not  at  all  weakened  by  that  fact.  Stated 
plainly,  the  complainants  occupy  this  positi(«i :  they  have  ac- 
quired title  to  the  petitioners'  property  at  a  sale  made  under  the 
authority  of  this  court,  by  a  breach  of  faith,  and  now  seek  to 
keep  it,  with  the  sanction  of  this  court.     That  cannot  be  done. 

But  the  complainants  deny  that  they  were  bound  to  keep 
faith  with  the  petitioners,  because  they  say  the  promise  of  their 
solicitor  was  obtained  by  fraud.  It  may  be  that  a  person  who 
procures  a  promise  to  adjourn  a  sale  by  intentional  falsehood  or 
deceit,  will  not  be  entitled  to  ask  relief  in  equity  against  a  sale 
made  in  violation  of  such  promise.  But  no  such  fraud  is  proved 
in  this  case.  Shortly  before  the  jjromise  to  adjourn  was  made, 
one  of  the  petitioners  applied  to  the  person  under  whose  direc- 
tion the  sale  was  made,  at  the  complainants'  office  in  New  York, 
for  an  adjournment,  and  was  there  told  that  unless  $300  was 
paid  the  sale  would  take  place  on  the  day  for  which  it  was  then 
appointed.  The  petitioner  at  once  said  he  could  not  pay  that 
sum;  he  was  asked  how  much  he  could  pay, and  he  replied  that 
he  had  $100  with  him,  and  could  probably  raise  $50  more.  At 
this  point  in  the  conversation,  the  petitioner  says,  he  was  direct- 
ed to  make  his  application  to  the  solicitor.  He  says  he  did  so 
as  soon  as  he  could  find  the  solicitor  at  his  office,  and  was  told 
by  him  that  he  would  enter  into  no  arrangement  respecting  an 
adjournment  until  he  had  first  communicated  with  his  clients. 
The  petitioner  then  directed  his  solicitor  to  negotiate  an  adjourn- 
ment. The  petitioner  admits  tliat  he  did  not  tell  the  complain- 
ants' solicitor  that  he  had  been  told,  at  the  complainants'  office 
in  New  York,  when  he  first  applied  there,  that  unless  $300  was 
paid  the  sale  must  proceed.     His  failure  to  do  so  is  the  fraud 


486  CASES  IN   CHANCERY.  [33  Eq. 

Mechanics  National  Bank  i-.  Burnet  Manufacturing  Company. 

which  the  comphnnant8  say  justified  thetn  iti  breaking  their 
jiromise.  Tliis  omission  does  not,  in  my  judgment,  furnish  the 
slightest  evidence  of  fraud.  It  is  not  pretended  that  the  peti- 
tioner was  expressly  directed  by  the  complainants  to  carry  any 
information  to  their  solicitor,  or  that  he  was  directed  to  say  to 
him  that  an  adjournment  should  only  be  granted  on  certain 
terms.  He  was  simply  directed  to  apply  to  him  for  an  adjourn- 
ment. But  even  if  he  had  been  expressly  directed  to  inform  the 
solicitor  that  an  adjournment  should  only  be  granted  in  case  a 
condition  was  complied  with,  I  think  he  was  absolved  from  all 
duty  to  act  as  tiie  medium  of  communication,  if  it  be  true,  as  he 
says  it  is — and  his  statement  on  this  point  is  uncontradicted — 
that  when  he  told  the  solicitor  he  had  been  directed  by  the  com- 
plainants to  apply  to  him  for  an  adjournment,  the  solicitor  at 
once  said  that  he  would  enter  into  no  arrangement  with  him 
until  he  had  first  communicated  wuth  his  clients.  The  petitioner 
was  justified  in  understanding,  from  this  remark,  that  no  com- 
munication he  made  would  be  credited  as  true  until  it  was  first 
verified  by  the  complainants.  Silence  under  such  circumstances 
was  not  fraud.  If  the  solicitor  did  as  he  said  he  would,  it  must 
be  assumed  that  he  had  full  information  as  to  the  terms  on 
which  his  clients  were  willing  to  grant  an  adjournment,  before 
he  promised  that  the  sale  should  be  adjourned.  In  my  opinion 
the  evidence  does  not  raise  the  least  suspicion  of  fraud. 
The  sale  must  be  set  aside,  with  costs. 


The  Mechanics  National  Bank  at  Newark 

V. 

The  H.  C.  Burnet  Mantjfacturixg  Company  and  Wil- 
liam S.  Squier. 

1.  Objections  which  relate  to  the  regularity  of  a  judgment  at  law,  or  to  the 
validity  of  the  instrument  upon  which  it  is  founded,  are  not  relievable  in 
equity. 


€  Stew.]  FEBRUARY  TERM,  1881.  487 


Mechanics  National  Bank  v.  Burnet  Manufacturing  Company. 


2.  The  remedy  for  grievances  of  this  character  is  either  by  application  to 
the  court  in  which  the  judgment  is  entered,  or  by  writ  of  error. 

3.  A  judgment  at  law  can  only  be  impeached  in  a  court  of  equity  for  fraud 
in  its  concoction,  or  upon  a  purely  equitable  defence,  or  upon  the  ground  that 
a  good  defence  at  law  has  been  lost  by  fraud,  ignorance  or  accident. 

4.  Fraud  perprelated  by  means  of  a  judgment  is  entitled  to  no  more  immu- 
nity than  a  fraud  perpeti-ated  by  any  other  means. 

5.  If  a  judgment,  founded  upon  a  just  debt,  is  entered  not  for  the  purpose  of 
securing  or  collecting  the  debt,  but  for  the  purpose  of  being  used  as  a  cover,  to 
protect  the  defendant's  property  from  his  other  creditors,  the  court  will 
denounce  it  as  a  fraud  and  set  it  aside,  as  it  would  any  other  fraudulent  con- 
trivance. 


On  final  hearing  on  bill,  answers  and  proofs   taken  before 
vice-chancellor. 

Mr.  Albert  P.  Condit,  for  complainants. 

Mr.  John  Lilly,  for  defendant  Squier. 

Mr.  John  Whitehead,  for  corporate  defendants. 

The  Vice-Chancklloe. 

The  complainants  are  judgment  creditors  of  the  H.  C.  Burnet 
Manufacturing  Company.  Their  judgment  was  recovered  in 
the  supreme  court  of  this  state,  October  19th,  1878.  The 
defendant,  William  S.  Squier,  was  also  a  judgment  creditor  of 
this  corporation.  He  had  six  judgments.  They  were  entered  in 
the  first  district  court  of  the  city  of  Newark,  on  September 
4th,  1878.  Executions  were  immediately  issued  on  them,  and  a 
sale  made  thereunder  on  the  eleventh  day  of  the  same  month. 
The  sale  embraced  all  the  property  of  the  corporate  defendants 
seizable  by  execution.  The  judgment  debtors  were,  at  the  time 
of  the  sale,  engaged  in  the  manufacture  and  sale  of  inks,  muci- 
lage and  sealing  wax,  and  though  their  property  consisted  of  a 
large  number  of  different  articles,  some  manufactured,  some  in 
course  of  manufacture  and  some  in  a  raw  state,  some  packed  in 
boxes  and  some  unpacked,  it  was  all  sold  in  one  bulk.     The 


488  CASES  IN   CHAXCERY.  [33  Eq. 

Mechanics  National  Bank  v.  Burnet  Manufacturing  Company 

defendant  Squier  purchased  the  whole.  The  complainants  seek 
to  have  this  sale  set  aside  and  to  hold  Mr.  Squier  responsible  for 
the  value  of  the  goods,  on  the  ground  that  he  obtained  his  judg- 
ments and  afterwards  used  them,  not  for  the  purpose  of  collecting 
or  securing  his  debt,  but  to  place  the  property  of  his  debtors 
where  it  could  not  be  reached  by  legal  process,  and  thus  enable 
them  to  defraud  their  creditors.  If  the  case  made  by  the  bill  is 
established  by  the  proofs,  there  can  be  no  doubt  that  the  com- 
plainants are  entitled  to  relief. 

The  defendants,  however,  deny  that  the  complainants  are 
entitled  to  the  character  they  assume.  They  say  they  are  not 
judgment  creditors.  They  urge  two  objections  against  the 
validity  of  the  complainants'  judgment.  First,  they  say  the 
court  in  which  they  recovered  their  judgment  never  acquired 
jurisdiction  of  the  person  of  the  corporate  defendants,  the  sum- 
mons in  the  action  having  been  served  on  a  person  not  authorized 
to  receive  service  for  the  corporation ;  and  second,  they  aver  that 
the  debt  on  which  the  judgment  is  founded  was  not  the  debt  of 
the  corporate  defendants,  but  of  one  of  their  officers.  These 
objections,  I  am  of  ojjiuion,  cannot  be  considered  here.  The 
court  which  pronounced  the  judgment  in  question  was  entirely 
competent  to  hear  them,  and  to  give  adequate  relief,  if  it  found 
that  the  defendants  were  entitled  to  it. 

Courts  of  equity  sometimes  give  relief  against  judgments  at 
law,  but  only  where  it  is  shown  that  the  defendant  was  ignorant 
of  thfe  facts  on  which  his  defence  rests  until  after  the  time  for 
making  defence  at  law  had  passed ;  or  that  he  was  prevented 
from  making  defence  by  the  artifice  or  fraud  of  his  adversary, 
or  by  accident  unmixed  with  negligence  or  fraud  on  his  part,  or 
that  his  defence  is  a  matter  of  pure  equity  cognizance.  But  in 
cases  where  the  grievance  he  attempts  to  urge  is  one  that  the 
court  which  pronounced  the  judgment  is  competent  to  hear  and 
decide,  and  he  has  either  urged  it  there  unsuccessfully,  or  has 
negligently  omitted  to  do  so,  this  court  can  give  no  relief. 
Reeves  v.  Cooper,  1  JBeas.  223  ;  Vaughn  v.  Johnson,  1  Stock.  173  ; 
Holmes  v.  Steele,  1  Stew.  Eq.  173.     The  precise  question  mooted  in 


6  Stew.]  FEBRUARY  TERM,  1881.  489 

Mechanics  National  Bank  v.  Burnet  Manufacturing  Company. 

this  case  was  decided  in  Stration  v.  Allen,  1   C.  E.  Gr.  229. 
Chancellor  Green  there  said  : 


"Objections  which  relate  to  the  regularity  of  a  judgment,  or  to  the  validity 
of  the  instrument  upon  which  it  is  founded,  constitute  no  ground  for  tlie  inter- 
ference of  this  court.  If  the  instrument  upon  which  a  judgment  is  entered 
was  without  consideration,  or  invalid,  or  if  the  judgment  itself  is  unauthorized, 
or  illegal,  the  remedy  for  the  party  aggrieved  would  be  by  apjilication  to  the 
court  in  which  the  judgment  is  entered,  or  by  writ  of  error.  They  are  ques- 
tions exclusively  for  the  cognizance  of  those  courts.  It  seems  to  be  conclu- 
sively settled  that  a  judgment  can  only  be  impeached  in  a  court  of  equity  for 
fraud  in  its  concoction." 

This  court  is  not  at  liberty,  therefore,  to  entertain  the  objec- 
tions interposed  by  the  defendants. 

There  seems  to  be  no  proof  in  this  case  which  will  justify  the 
conclusion  that  the  judgments  of  the  defendant  Squier  were  not 
founded  upon  a  just  debt.  But  this  does  not  preclude  an  inquiry 
whether  they  were  not  obtained  and  used  for  a  fraudulent  pur- 
pose. A  judgment  may  be  founded  upon  an  honest  debt,  and 
yet  it  may  be  obtained  under  such  circumstances  and  used  for 
such  purposes  as  to  make  it  a  fraud.  If  it  is  recovered  not  for 
the  purpose  of  securing  the  debt,  but  solely  to  be  used  as  a 
fraudulent  cover  to  protect  the  defendant's  property  from  his 
other  creditors,  it  is  a  fraud,  and  the  courts  may  deal  with  it  as 
they  would  with  any  other  fraudulent  contrivance.  Fraud  per- 
petrated by  means  of  a  judgment  is  no  more  entitled  to  immunity 
than  a  fraud  perpetrated  by  means  of  a  deed  or  mortgage. 
Jones  V.  Naughrigkt,  2  Stock.  298.  That  the  forms  of  law  have 
been  pursued  is  no  protection  in  a  court  of  equity,  if  the  result 
aimed  at  and  reached  is  fraud.  Metropolitan  Bank  v.  Durant, 
7  a  E.  Ch\  35;  S.  C,  on  appeal,  9  C.  E.  Gr.  556. 

If  a  judgment  creditor  uses  his  judgment  for  a  fraudulent 
purpose,  as  against  subsequent  judgment  creditors,  he  will  be 
postponed  until  after  they  are  paid.  As  for  example,  if,  after 
levy,  he  allows  the  property  to  remain  in  the  possession  and  under 
the  control  of  his  debtor  for  such  length  of  time  and  under  such 
circumstances,  as  to  justify  the  conclusion  that  his  object  in 
obtaining  it  was  not  to  secure  or  collect  his  debt,  but  to  protect 


400  CASES  IN  CHANCERY.  [33  Eq. 

Mechanics  National  Bank  v.  Burnet  Manufacturing  Company. 

his  debtor  in  the  enjoyment  of  liis  property  and  to  prevent  his 
other  creditors  from  seizing  it  for  the  satisfaction  of  their  debts, 
his  judgment  and  levy  will  be  declared  void  as  to  subsequent 
judgment  creditors.  Casher  v.  Peterson,  1  South.  317;  Wil- 
liamson V.  Johnson,  7  Hal.  86;  Caldwell  v.  Fifield,  4-  Zab.  150. 
Fraud  destroys  whatever  it  taints,  whetlier  it  be  perpetrated 
through  the  machinery  of  the  law  or  by  other  means. 

The  important  question  then  is.  Did  the  defendant  Squier  obtain 
his  judgments  for  the  purpose  of  perpetrating  a  fraud,  or  has  he 
made  a  fraudulent  use  of  them?  They  were  obtained  under  very 
extraordinary  circumstances.  He  is  a  dealer  in  chemTcals,  and 
furnished  the  corporate  defendants  with  all  the  material  they 
required  in  their  business.  At  the  time  he  sued,  the  corporation 
had  but  a  single  officer,  at  least  so  Mr.  Squier  believed.  He  says 
the  secretary  was  the  only  officer  he  knew  or  recognized,  and  he 
exercised  absolute  control  over  all  the  affiiirs  of  the  corporation. 
He  and  the  secretary  were  on  exceedingly  intimate  and  friendly 
terms ;  he  had  been  permitted  for  some  time  to  store  his  cliemi- 
cals  on  the  premises  of  the  defendants,  and  for  more  than  a  month 
prior  to  the  time  when  he  sued,  he  had  been  furnished  a  room  in 
the  factory  of  the  defendants,  by  the  secretary,  where  he  received 
his  mail  and  attended  to  his  correspondence.  His  six  suits  were 
brought  on  the  29th  of  August,  1878.  He  heard  of  the  com- 
plainants' claim  about  this  time,  but  he  says  lie  never  thought 
the  corporation  owed  them  anything.  When  he  sued,  his  whole 
claim  amounted  to  SI, 163. 15.  Of  this  amount  he  says  $242.17 
was  borrowed  money,  and  advanced  in  three  loans :  $25  August 
17th ;  $50  August  24th,  and  $167.71  on  August  27th.  He  says 
he  paid  in  addition,  on  August  24th,  in  the  purchase  of  a  judg- 
ment against  the  corporation,  the  sum  of  $146.95.  He  made 
the  purchase  at  the  request  of  the  secretary,  and  took  an  assign- 
ment of  the  judgment.  He  admits  he  believed  the  corporation 
was  solvent  when  he  sued.  The  judgment  purchased  seems  to 
have  been  the  only  one  which,  up  to  that  time,  had  been  recov- 
ered against  the  corporation,  and,  so  far  as  the  evidence  shows,  no 
creditor  had  previously  sued  them.  He  and  the  corporation, 
prior  to  this  time,  had  been  in  the  habit  of  issuing  notes  for  the 


6  Stew.]  FEBRUARY  TERM,  1881.  491 

Mechanics  National  Bank  v.  Burnet  Manufacturing  Company. 

accommodation  of  each  other.  Before  bringing  his  suits  he  made 
no  effort  either  to  collect  his  debt  or  to  have  it  secured,  though 
the  corporation  undoubtedly,  with  very  little  effort,  could  have 
raised  the  sum  necessary  to  pay  it,  and  had  property  amply 
sufficient  to  secure  it.  He  says  he  asked,  on  August  28th,  for 
the  return  of  the  $167.71,  loaned  August  27th;  payment  was 
not  made,  but  he  does  not  pretend  that  his  demand  was  repulsed 
offensively,  so  that  his  indignation  was  aroused,  or  that  any  dis- 
closure was  made  which  excited  his  fears.  In  his  narrative  of 
what  preceded  the  suits,  nothing  can  be  found  which  justifies  his 
conduct,  or  discloses  the  slightest  reason  or  motive  for  his  suits. 
In  view  of  the  facts,  as  he  states  them  himself,  it  is  impossible  to 
resist  the  conviction  that  his  suits  were  not  the  result  of  a  scheme, 
concocted  by  him  and  the  secretary,  to  attain  some  object  which 
he  now  desires  to  conceal. 

The  events  occurring  at  the  sale,  as  well  as  those  which  unde- 
niably preceded  and  succeeded  it,  show,  I  think,  with  even 
greater  clearness,  the  real  purpose  of  the  parties.  Mr.  Squier 
says,  after  he  obtained  his  judgments,  he  told  the  secretary  he 
was  going  to  sell  if  he  was  not  paid.  The  secretary  was  not 
disturbed  by  this  announcement,  at  least  he  did  nothing  and  said 
nothing  to  prevent  the  threat  from  being  carried  into  execution. 
A  short  time  before  the  sale,  it  is  proved  that  the  secretary 
exhibited  a  bundle  of  papers,  which  he  said  were  the  advertise- 
ments put  up  by  the  constable,  and  that  they  had  not  been  up 
five  minutes  before  they  were  taken  down.  No  attempt  has  been 
made  to  prove  where  the  notices  of  this  sale  were  set  up,  or  to 
show  that  they  remained  up  for  a  longer  time  than  that  men- 
tioned by  the  secretary.  On  the  day  before  the  sale  and  on  the 
day  of  the  sale,  the  secretary  made  an  inventory  of  all  the  tangi- 
ble property  of  the  corporation.  Why  he  did  so  does  not  appear. 
It  was  not  exhibited  at  the  sale.  The  defendant  says  he  never 
saw  it.  The  hands  employed  in  the  factory  wei'e  kept  at  work 
until  midday  on  the  day  of  sale,  when  they  were  sent  away  by 
order  of  the  secretary,  and  given  leave  to  use  the  balance  of  the 
day  as  a  holiday.  They  wei'e  not  discharged,  nor  informed  of 
the  sale,  nor  does  it  appear  that  the  slightest  intimation  was  given 


492  CASES  IX  CHANCERY.  [33  Eq. 

Mechanics  National  Bank  v.  Burnet  Manufacturing  Company. 

to  them  that  it  was  at  all  uncertain  whether  they  would  be 
required  to  resume  work  in  the  morning.  It  does  not  appear 
that  any  of  them  were  at  the  sale,  and  there  is  nothing  to  show 
that  they  knew  a  sale  was  to  be  made.  The  secretary  sent  a 
messenger  for  a  person  that  Mr.  Squier  had  requested  to  attend 
the  sale,  but  who  had  not  appeared  when  the  constable  was  ready 
to  proceed. 

As  already  stated,  the  property  was  sold  as  an  entirety.  The 
constable  thinks  he  sold  it  in  three  lots,  but  the  bidding  at  the 
sale,  as  given  by  Mr.  Squier,  shows  conclusively  that  he  is  mis- 
taken. Who  gave  direction  as  to  how  the  property  should  be 
sold,  neither  Mr.  Squier  nor  the  constable  can  tell.  Mr.  Squier 
is  sure  he  did  not,  while  the  constable  says  that  he  publicly  asked 
for  direction,  and  received  it,  but  cannot  tell  from  whom  it 
came.  Immediately  after  the  sale,  Mr.  Squier  took  possession 
of  the  property  and  also  of  the  factory,  though  he  had  acquired 
no  right  to  the  term  of  the  corporation  in  the  factory.  He  says 
he  told  the  secretary  that  he  should  continue  the  business,  and 
desired  him  to  remain  in  charge.  The  secretary  at  once  con- 
sented to  do  so.  Though  Mr.  Squier  positively  affirms  that  he 
had  no  understanding  or  arrangement  with  the  secretary  before 
the  sale,  yet  I  think  it  is  impossible  for  any  one  to  listen  to  his 
story  describing  what  transpired  between  them  after  the  sale, 
without  seeing,  almost  as  clearly  as  though  no  effort  to  conceal 
anything  had  been  made,  that  both  fully  understood  that  the 
business  was  to  be  continued,  and  that  the  secretary  was  to  remain 
in  charge.  Mr.  Squier  admits  that  he  expected  the  workmen  to 
return  the  next  morning  and  resume  work.  Business  was  resumed 
the  next  morning  in  the  name  of  the  corporation,  and  was  con- 
tinued in  its  name  until  this  suit  was  brought.  The  name  of  the 
corporation  was  used  with  the  consent  of  its  secretary,  in  order, 
as  it  is  said,  that  Mr.  Squier  might  have  the  benefit  of  it  as  a 
trade  mark.  The  goods  sold  were  shipped  in  the  name  of  the 
corporation,  with  the  words  "From  W.S.  Squier"  written  across 
the  shipping  receipt,  and  charged  upon  the  books  of  the  corpora- 
tion. The  accounts  so  charged  were  afterwards  assigned  by  the 
corporation,  acting   by   its   secretary,  to    Mr.  Squier.     In   one 


6  Stew.]  FEBRUARY  TERM,  1881.  493 

Mechanics  National  Bank  v.  Burnet  Manufacturing  Company. 

instance  it  is  proved  that  an  account  so  charged  was  collected  by 
draft  on  the  debtor,  drawn  by  the  corporation,  the  secretary,  of 
course,  acting  for  the  corporation.  A  short  time  after  the  sale, 
debts  due  to  the  corporation,  amounting  to  about  $1900,  were 
assigned  by  the  corporation  to  Mr.  Squier,  upon  which,  he  says, 
he  advanced  to  its  secretary,  at  various  times,  about  $1500.  He 
says  he  has  collected  on  the  accounts  so  assigned,  about  $650,  and 
that  the  officers  and  agents  of  the  corporation  have  collected  and 
appropriated  the  balance. 

These  facts,  in  my  judgment,  speak  for  themselves.  They 
require  no  comment.  They  demonstrate,  beyond  doubt,  the  true 
character  of  this  transaction.  They  permit  but  one  deduction, 
and  that  is,  that  the  judgments  and  sale  were  an  entirely  friendly 
proceeding,  contrived  and  arranged  by  Mr.  Squier  and  the  secre- 
tary of  the  corporation,  for  the  purpose  of  effecting  an  ostensible 
change  in  the  ownership  of  the  property  of  the  corporation,  with 
intent  to  defeat  the  enforcement  of  the  complainant's  claim.  The 
assignment  to  Mr.  Squier  of  the  debts  due  to  the  corporation,  is, 
I  think,  tainted  with  the  same  illegality.  It  was  the  natural 
sequence  of  what  preceded  it,  and  is  manifestly  infected  with  the 
same  evil  purpose. 

A  decree  will  be  advised  setting  aside  the  sale  and  assignment, 
and  requiring  the  defendant  Squier  to  account  for  and  pay  what- 
ever he  may  have  received  under  either.  The  complainants  are, 
of  course,  entitled  to  costs. 


494  CASES  IN  CHANCERY.  [33  Eq. 


Haydock  v,  Haydock. 


The  Executoes  of  Eden  Haydock,  deceased, 

V. 

Eliza  P.  Haydock. 

1.  The  question  whether  an  act  is  the  product  of  undue  influence  or  not, 
must  always  be  largely  controlled  by  the  state  of  liealth  and  condition  of 
mind  of  the  person  alleged  to  have  been  unduly  influenced. 

2.  Whatever  destroys  free  agency,  and  constrains  a  person  to  do  what  is 
against  his  will,  and  what  he  would  not  do  if  left  to  himself,  is  undue  influ- 
ence, whether  the  control  be  exercised  by  physical  force,  threats,  importunity 
or  any  other  species  of  mental  or  physical  coercion. 

3.  Undue  influence  is  not  measured  by  degree  or  extent,  but  by  its  eflect; 
if  it  is  sufficient  to  destroy  free  agency,  it  is  undue,  even  if  it  is  slight. 


On  final  hearing,  on  bill,  answer  and  proofs  taken  before  the 
vice-chancellor. 

Mr.  Garret  Berry  and  Mr.  J.  Henry  Stone,  for  complainants. 

Mr.  Benjamin  A.  Vail  and  Mr.  James  R.  English,  for  defend- 
ant. 

The  Vice-Chancelloe. 

The  object  of  this  suit  is  to  set  aside  two  gifts  made  by  a  hus- 
band to  a  wife  shortly  before  his  death.  The  grounds  alleged 
are  want  of  capacity  and  undue  influence. 

Eden  Haydock  died  April  29th,  1879.  He  left  a  widow,  the 
defendant  in  this  suit,  and  an  only  child,  a  daughter  by  a  former 
wife.  By  his  will,  which  was  executed  March  23d,  1871,  he 
gave  his  widow  $1,000,  payable  immediately  after  his  death,  and 
an  annuity  of  $600  during  her  widowhood,  payable  in  semi- 
annual installments,  the  first  payment  to  be  made  at  the 
expiration  of  a  year  from  his  death.  The  balance  of  his 
estate  is  given  to  his  daughter.  His  estate,  exclusive 
of  the  gifts,  amounts  to  a  trifle  less  than  $16,300.  The 
gifts  represent  a  value  of  $9,000.     They  were  made  at  different 


6  Stew.]  FEBRUARY  TERM,  1881.  495 

Haydock  v.  Haydock. 

dates,  the  first,  February  24th,  1879,  and  embraced  niue  shares  of 
the  capital  stock  of  the  United  New  Jersey  Railroad  and  Canal 
Company,  and  seven  bonds  of  the  city  of  Rahway,  having  a  face 
value  of  $7,000 ;  and  the  second  was  made  March  10th,  1879,  and 
consisted  of  a  promissory  note  for  $5,000.  Regular  transfers 
were  made,  and  the  gifts  completed  by  formal  delivery. 

The  evidence  respecting  the  state  of  the  donor's  mind  when 
the  gifts  were  made  is  very  conflicting.  That  on  the  part  of  the 
complainants  shows  a  case  of  utter  imbecility,  a  mind  so 
thoroughly  decayed  as  to  be  unable  to  comprehend  the  simplest 
matters — and  this  is  shown  to  have  been  its  condition  for  some 
months  antecedent  to  the  time  when  the  gifts  were  made;  whilst 
the  evidence  for  the  defendant  shows  a  mind  somewhat  enfeebled 
by  the  decay  incident  to  old  age,  which,  to  some  extent,  had  lost 
its  original  power  and  grasp,  and  in  which  memory  was  quite 
defective,  but  yet  possessing  sufficient  vigor  to  uuderstaud,  in  a 
reasonable  manner,  the  ordinary  affairs  of  life,  and  to  deal  with 
them  rationally*  The  facts  and  circumstances  adduced  by  the 
parties  in  support  of  their  opposing  theories  are,  in  my  judg- 
ment, so  nearly  equal  in  force  and  weight,  that,  did  the  decision 
of  the  case  depend  solely  upon  the  solution  of  the  question  of 
capacity,  a  problem  of  almost  insoluble  difficulty  would  be  pre- 
sented. But  I  think  the  rights  in  dispute  may  be  safely  and 
properly  determined  without  a  struggle  with  the  difficulty  just 
mentioned.  The  case  hinges,  I  think,  upon  the  solution  of 
another  question ;  one  which  I  regard  as  comparatively  free  from 
difficulty. 

The  question  to  which  I  refer  is,  were  these  gifts  procured  by 
the  exercise  of  undue  influence?  The  determination  of  this 
question  must  always  be  largely  controlled  by  the  state  of  health 
and  condition  of  mind  of  the  person  alleged  to  have  been  unduly 
or  unfairly  influenced.  A  mind  naturally  weak,  or  which  has 
become  impaired  by  age,  disease  or  grief,  is  much  more  subject 
to  any  sort  of  control  than  one  naturally  strong  and  unimpaired. 
It  is  always,  therefore,  a  matter  of  the  first  importance  to  the 
tribunal  charged  with  the  duty  of  deciding  this  question,  to  know 
fully  the  situation  and  surroundings,  and  the  exact  condition  of 


496  CASES  IN  CHANCERY.  [33  Eq. 

Haydock  v.  Haydock. 

mind  and  state  of  physical  health  of  the  person  alleged  to  have 
been  imposed  upon. 

No  definition  of  wliat  the  law  denominates  undue  influence 
can  be  given  which  will  furnish  a  safe  and  reliable  test  for  every 
case.  Each  case  must  be  decided  on  its  own  special  facts.  All 
that  can  be  said,  in  the  way  of  formulating  a  general  rule  on  this 
subject,  is,  that  whatever  destroys  free  agency,  and  constrains  the 
person  whose  act  is  brought  in  judgment,  to  do  what  is  against 
his  will,  and  what  he  would  not  have  done  if  left  to  himself,  is 
undue  influence,  whether  the  control  be  exercised  by  physical 
force,  threats,  importunity  or  any  other  species  of  mental  or 
physical  coercion.  The  extent  or  degree  of  the  influence  is 
quite  immaterial,  for  the  test  always  is,  was  the  influence,  whether 
slight  or  powerful,  sufficient  to  destroy  free  agency,  so  that  the 
act  put  in  judgment  was  the  result  of  the  domination  of  the 
mind  of  another  rather  than  the  expression  of  the  will  and  mind 
of  the  actor.  Turne)'  v.  Cheesman,  S  BIcCart.  S43,  S65 ;  Ex- 
ecutors of  Moore  v.  JBlauveU,  2  McCari.  367  ;  Lynch  v.  Clements, 
9  a  E.  Gr.  4S1. 

Cases  of  this  class  generally  cast  upon  the  tribunal  charged 
with  the  duty  of  deciding  them  responsibilities  of  the  weightiest 
character.  It  is  the  duty  of  the  courts  to  inflexibly  maintain 
the  right  of  the  citizen  to  exercise  full  and  complete  dominion 
over  his  property,  in  making  such  disposition  of  it  as  to  him 
may  seem  proper,  but  they  are  under  a  duty,  equally  solemn  and 
imperative,  not  to  allow  him  in  his  old  age,  after  his  strength 
and  vigor  have  departed,  and  he  has  fallen  into  decrepitude  and 
weakness,  to  be  despoiled  of  his  property  by  any  sort  of  coercion 
or  trick.  It  is  their  duty  to  uphold  the  rights  of  the  strong, 
but  it  is  also  their  duty  to  protect  the  weak. 

At  the  time  the  gifts  were  made,  Mr.  Haydock  was  upwards 
of  seventy-five  years  of  age  ;  his  wife  was  about  fifty-five.  For 
two  or  three  months  preceding  the  gifts,  Mr.  Haydock  had  been 
confined  to  the  house  by  sickness ;  he  was  so  feeble,  physically, 
as  to  require  assistance  in  dressing  and  undressing ;  he  saw  few 
persons  besides  the  members  of  his  household  and  his  physician. 
From  the  15th  of  January,  1879,  up  to  the  time  of  his  death,  he 


6  Stew.]  FEBRUARY  TERM,  1881.  497 

Haydock  v.  Haydock. 

he  was  almost  constantly  in  charge  of  his  wife  and  her  brother, 
George  Bayright.  Prior  to  the  date  just  mentioned,  George 
Bayright  and  his  wife  had  kept  house  at  Asbury  Park,  but  at 
that  date  they  closed  their  house,  and  Mrs.  Bayright  went  to 
Brooklyn,  and  Mr.  Bayright  went  to  Rah  way,  where  Mr.  Haydock 
resided,  and  took  up  his  residence  with  him,  where  he  remained, 
except  for  short  intervals,  until  Mr.  Haydock  died.  Mr.  Hay- 
dock and  his  daughter  had  no  intercourse  after  the  fall  of  1878. 
On  November  30th,  1878,  his  daughter  procured  a  commission 
of  lunacy  to  be  issued  against  him.  Before  it  issued,  the  proofs 
show  that  Mrs.  Haydock  had  consulted  counsel  as  to  what  steps 
it  would  be  necessary  for  her  to  take  to  have  a  guardiau  ap- 
pointed for  Mr.  Haydock,  and  in  the  conference  stated  that  she 
thought  he  required  a  guardian.  The  commission  sued  out  by 
the  daughter  was  executed  December  24th,  1878,  and  resulted 
in  a  finding  that  Mr.  Haydock  was  then  of  sound  mind.  The 
evidence  leaves  no  ground  for  doubt  that  Mr.  Haydock  had  suf- 
ficient mind  at  this  time  to  understand  the  nature  of  this  pro- 
ceeding. Its  institution  deeply  wounded  him.  He  thought  it 
degraded  him,  and  that  it  was  prompted  solely  by  mercenary 
motives.  He  did  not  appear  before  the  commissioners ;  the  con- 
dition of  his  health  rendered  it  imprudent,  if  not  dangerous,  for 
him  to  do  so,  but  he  was  represented  by  his  wife  and  also  by 
counsel.  No  evidence  has  been  offered  tending  to  show  that  he 
prepared  the  defence  made  to  the  lunacy  proceedings,  nor  that  he 
gave  any  direction  or  instruction  concerning  it.  The  finding  of 
the  jury  gave  him  great  satisfaction.  When  he  first  heard  of  it 
he  expressed  his  satisfaction  by  exclaiming  "  Richard  is  himself 
again  ! "  Even  prior  to  this  proceeding,  there  can  be  no  doubt 
that  his  wife  possessed  a  strong  influence  over  him.  There  are 
some  phases  of  his  conduct  which  show  that  he  stood  in  dread 
of  her.  On  one  or  two  occasions  it  is  proved  that  he  said,  after 
having  done  something  which  displayed  great  infirmity  of  mem- 
ory, as  an  offer  to  pay  a  debt  a  second  time,  "  Don't  tell  Eliza." 
The  attempt  of  the  daughter  to  have  him  placed  under  the  con- 
trol of  a  guardian,  and  the  defence  made  in  his  behalf  by  his 
wife,  naturally  had  the  effect  of  weakening  the  influence  of  the 

32 


498  CASES  IN  CHANCERY.  [33  Eq. 

Haydock  v.  Havdock. 

daughter  and  increasing  that  of  the  wife.  The  wife  admits  that 
her  influence  over  him  was  all-powerful.  While  under  cross-ex- 
amination she  was  asked  if  she  had  not  proposed  to  her  husband  to 
make  over  his  property  to  her,  to  which  she  replied  she  had  not,  but 
added,  "I  suppose  if  I  had  asked  him  to  do  so,  he  would  have 
done  it."  If  she  is  not  mistaken  in  lier  estimate  of  her  power,  it 
would  seem  that  he  must  have  been  a  very  plastic  instrument  iu 
her  hands,  and  that  she  could  mould  his  will  into  any  form  dic- 
tated by  either  her  interest  or  her  fancy. 

His  mind  at  this  time  was  in  a  state  of  decay ;  senile  dementia 
had  undoubtedly  commenced.  He  was  very  forgetful ;  he  did 
not  comprehend  either  readily  or  clearly ;  his  perceptions  were 
blunted ;  all  his  intellectual  faculties  were  dull  and  stupid.  Those 
who  had  known  him  longest,  and  were  best  able  to  contrast  the 
present  condition  of  his  mind  with  its  state  when  in  its  original 
vigor,  almost  with  one  accord  looked  upon  him  as  an  intellectual 
wreck.  There  is  evidence  in  the  case,  coming  from  sources  enti- 
tled to  great  respect  and  confidence,  which,  without  anything 
to  countervail  it,  would  be  abundantly  sufficient  to  support  a 
finding  that  at  the  time  the  gifts  were  made,  Mr.  Haydock  did 
not  possess  testamentary  capacity,  even  according  to  the  low 
standard  fixed  by  the  adjudications  of  this  state.  But  there  is 
countervailing  evidence,  and  I  am  not  persuaded  that  the  court 
ought  to  declare  the  gifts  void  solely  on  the  ground  of  want  of 
capacity.  It  is  certain,  however,  that  Mr.  Haydock  was  in  a 
condition  of  extreme  dependence.  He  was  weak  in  body  and 
feeble  in  mind ;  he  could  do  little  for  himself;  he  was  compelled 
to  look  to  others  for  almost  everything  that  could  make  life  either 
desirable  or  endurable.  He  was  in  a  position  where  he  would 
be  likely  to  be  easily  controlled  and  to  yield  to  light  influences, 
especially  if  exerted  by  a  person  in  whom  he  had  confidence,  or 
upon  whom  he  was  dependent. 

This  brings  us  to  the  main  question :  Were  these  gifts  the 
product  of  undue  influence?  The  defendant  says  they  were 
purely  voluntary,  and  that  she  did  not  even  know  of  her  hus- 
band's intention  to  make  them  until  he  was  ready  to  execute  it. 
They  were  the  subject  of  conversation  between  them,  though, 


6  Stew.]  FEBRUAEY  TERM,  1881.  499 


Havdock  v.  Havdock. 


according  to  the  testimony  of  the  defendant's  brother  George, 
they  had  been  fully  determined  upon  nearly  a  month  before  the 
first  was  made,  and  the  securities  which  were  to  be  the  subject  of 
them  had  been  separated  by  Mr.  Haydock  from  his  other  secu- 
rities and  their  value  computed.  Considering  the  intimate  aod 
confidential  relations  of  the  parties,  their  constant  association, 
and  the  strong  inducement  the  husband  was  under  to  make 
known  to  his  wife  any  generous  purpose  lie  may  have  entertained 
towards  her,  the  reticence  attributed  to  him  strikes  my  mind  as 
not  only  unnatural  and  improbable,  but  as  a  circumstance  justi- 
fying the  most  painful  suspicions.  What  reason  is  it  possible  to 
assign  for  this  extraordinary  silence  ?  Whether  the  gifts  were 
dictated  by  love  for  the  wife,  or  by  hatred  for  the  daughter,  or 
were  the  product  of  mingled  love  and  resentment,  the  feeling 
was  one  that  men  do  not  usually  conceal  without  a  motive.  It 
can  hardly  be  believed  that  a  man  in  his  situation  would  have 
attempted  to  perpetrate  a  surprise.  Childish  minds  are  usually 
frank  and  open ;  they  attempt  no  concealments  and  keep  no 
secrets.  If  the  generous  purpose  ascribed  to  Mr.  Haydock  had 
originated  with  him,  I  am  unable  to  believe  tliat  it  would  have 
been  possible  for  him,  in  his  weak  and  dependent  state,  to  have 
withheld  all  knowledge  of  it  from  his  wife  until  he  was  ready 
to  execute  it,  and  the  fact  that  she  solemnly  declares  that  he  did, 
introduces  a  circumstance  in  support  of  her  claim  so  unnatural 
and  improbable  as  to  shock  credulity  and  to  cast  deep  distrust 
upon  her  whole  case. 

The  defendant's  brother  George  would  not  say  that  he  never 
heard  the  defendant  ask  or  importune  her  husband  to  make  over 
his  property  to  her.  All  he  can  be  induced  to  say  on  this  point 
is,  that  he  may  have  heard  her  ask  him  to  do  so,  but  if  he  did 
he  does  not  recollect  it.  This  style  of  testifying  has  very  much 
the  appearance  of  an  attempt  to  suppress  the  truth.  There  are 
witnesses  whose  moral  sense  seems  to  be  much  less  out- 
raged by  a  suppression  of  the  truth  than  by  a  downrigiit  denial 
of  it.  They  seem  to  think  the  shock  to  conscience  will  be  much 
less  violent  if  they  merely  pretend  to  forget,  than  it  would  be  if 
they  ventured  upon  a  bold,  blunt  denial.     In  this  case,  the  trans- 


600  CASES  IN  CHANCERY.  [33  Eq. 


Haydock  v.  Haydock. 


action  inquired  about  had  only  recently  occurred,  if  it  ever  oc- 
curred at  all,  and  it  was  of  a  character  likely  to  fasten  itself  so 
firmly  upon  his  memory  that  he  could  not  forget  it.  It  was  a 
thing  which,  if  he  heard,  he  could  not  forget,  and  if  he  did  not 
hear  it,  he  would  be  able  to  say,  positively,  that  it  never  occui'red 
in  his  presence.  Under  some  circumstances,  feigned  forgetful- 
ness  of  a  fact  may  be  very  satisfactory  proof  of  its  existence. 

A  female  servant  who  lived  in  tlie  family  of  Mr.  Haydock 
from  September,  1878,  up  to  the  middle  of  February,  1879, 
swears  diat  Mrs.  Haydock  talked  to  her  husband  almost  every 
day  about  his  money  affairs;  that  Mr.  Haydock  said  very  little; 
in  the  language  of  the  witness,  she  could  hardly  get  a  word  out 
of  him,  and  that  his  disinclination  to  talk  about  his  business 
made  her  very  angry.  She  also  says  that  Mrs.  Haydock  had 
papers  which  she  wanted  Mr.  Haydock  to  sign,  and  that  she 
heard  Mrs.  Haydock  say  more  than  once,  when  she  was  angry, 
that  she  would  not  stay  with  him.  This  witness  seemed  to  me 
to  be  entirely  trustworthy.  There  was  nothing  in  her  deport- 
ment nor  in  her  story  which  created  the  slightest  doubt  of  the 
substantial  truth  of  her  testimony.  She  was  free  from  all  inter- 
est or  bias,  and  had  no  motive  to  misrepresent  or  withhold  the 
truth.  Another  female  servant,  who  lived  in  the  family  for 
some  weeks  after  the  one  whose  testimony  has  just  been  re- 
ferred to  left,  testifies  to  acts  and  expressions  by  Mrs.  Haydock 
constituting  coercion  of  the  most  offensive  sort.  If  her  testi- 
mony is  true,  Mr.  Haydock  was  almost  constantly,  during  the 
time  she  was  in  his  family,  importuned  to  sign  papers  and  make 
over  hLs  property,  by  methods  which,  in  his  situation,  amounted 
to  absolute  torture.  But  there  are  portions  of  her  story  which, 
I  am  satisfied,  are  inventions.  She  is  also  self-contradicted. 
Standing  alone,  her  testimony  would  be  entitled  to  no  considera- 
tion whatever,  but  viewed,  as  it  must  be,  in  connection  with  the 
other  evidence  in  the  case,  I  do  not  think  it  can  be  discarded  as 
without  truth  or  force. 

The  conclusion  I  have  reached,  after  listening  to  the  witnesses, 
and  attentively  observing  their  manner  while  testifying,  and 
after  giving  their  evidence  the  most  patient  and  careful  consid- 


6  Stew.]  FEBRUARY  TERxM,  1881.  501 


Haj-dock  v.  Haydock. 


eration,  is,  that  the  gifts  in  question  were  procured  by  the  exer- 
cise of  undue  influence.  I  have  not  adverted  to  all  the  evidence 
which  has  led  me  to  this  conclusion.  Usually,  in  cases  of  this 
kind,  there  are  many  little  things,  which,  in  the  abstract,  are 
mere  trifles,  so  small  as  to  be  diflicult  to  describe  as  sej^arate  mat- 
ters, but  which,  when  combined,  and  considered  in  the  concrete, 
exercise  a  very  potent  influence  upon  the  judgment.  There  are 
many  such  trifles  in  this  case. 

Besides,  the  transactions  brought  under  review  belong  to  a 
class  which  it  is  the  habit  of  courts  of  equity  to  examine  with 
a  watchful  jealousy.  A  wife  may  make  a  valid  gift  to  her  hus- 
band, but  such  gifts  are  not  favored  in  equity,  and,  if  challenged, 
a  court  of  equity  will  examine  them  with  an  anxious  watchful- 
ness and  caution  and  a  dread  of  undue  influence,  and  never 
sanction  them  unless  they  appear  to  be  the  free  act  of  the  wife. 
2  Story's  Eq.  Jur.  §  1296. 

The  reason  is  obvious.  The  husband  is  master;  the  wife 
occupies  a  position  of  dependence,  and  in  many  cases  his  superior 
position  enables  him  to  control  her  will  by  his  wish.  The  parties 
here  had  exchanged  their  original  positions.  The  wife,  in  con- 
sequence of  her  husband's  weakness,  had  taken  his  place,  and  he 
had  sunk  into  hers.  For  this  reason,  I  tjiink,  the  court  is  bound, 
in  determining  the  validity  of  the  gifts  in  question,  to  apply  the 
salutary  principle  just  stated,  and,  unless  convinced  that  they 
were  the  free,  voluntary,  and  well-understood  acts  of  the  donor's 
mind,  must  set  them  aside.  I  am  not  so  convinced,  and  shall, 
consequently,  advise  a  decree  for  complainants.  The  complain- 
ants are  entitled  to  costs. 


502  CASES  IN  CHANCERY.  [33  Eq. 


Blakeley  v.  Blakeley. 


Jane  Blakeley 

V. 

Sidney  Blakeley  et  al. 

L  When  no  fraud  is  alleged,  and  where  incapacity  is  the  ground  on  which 
a  deed  is  sought  to  be  set  aside,  the  test  is,  had  the  grantor  suflScient  mind  to 
comprehend,  in  a  reasonable  manner,  the  nature  and  effect  of  what  he  was 
doing  ? 

2.  A  suitor  who  seeks  to  set  aside  a  deed  on  the  ground  of  incapacity,  must 
do  something  more  than  show  insanity  ;  he  must  show  that  the  transaction  he 
seeks  to  invalidate  was  affected  by  the  grantor's  derangement. 

3.  A  deed  made  by  a  person  of  non-sane  mind,  before  unsoundness  is  estab- 
lished by  inquisition,  is  not  void,  but  merely  voidable,  and  may  be  confirmed 
in  lucid  intervals  so  as  to  be  unimpeachable. 


On  final  hearing  on  bill,  answer,  and  proofs  taken  before  a 
master. 

Mr.  John  A.  Miller,  for  complainant. 

Mr.  Wm.  B.  Guild,  jun.,  for  defendants. 

The  Vice-Chancellor. 

The  complainant  seeks  to  set  aside  a  deed  made  by  her 
mother  to  one  of  the  defendants,  on  the  ground  that  her  mother, 

Note. — A  deed  or  contract  made  during  insanity  may  be  ratified  by  the  gran- 
tor, if  his  sanity  be  subsequently  restored  (Breckinridge  v.  Onnsby,  1  J.  J.  Marsh, 
2S6  ;  Allen  v.  BerryhiU,  27  Iowa  534;  Carrier  v.  Sears,  4  Allen  SS6 ;  Bassett  v. 
Broum,  105  Mass.  551 ;  Taylor  v.  Patrick,  1  Bibh  168;  Waiters  v.  Barral,S 
Bush  598);  including  an  invalid  marriage  (Cole\.  Cole,  5  Sneed  57 ;  Crump 
V.  Morgan,  S  Ired.  Eq.  91.  See  Johnson  v.  Johnson,  45  Mo.  595  ;  Jones  v.  Jones, 
S6  Md.  44"^ ;  Andrews  v.  Page,  3  Heisk.  654) ;  or  waiving  a  right  of  dower 
(Brown  v.  Hodgdon,  31  Me.  65  ;  but  see  Pinkerlon  v.  Sargent,  102  Mass.  568) ; 
or  a  contract  made  during  intoxication  {Eaton  v.  Perry,  29  Mo.  96 ;  Blagg  v. 
Hunter,  15  Ark.  246 ;  Barrett  v.  Buxton,  2  Aik.  167 ;  Arnold  v.  Hickman,  6 
Munf.  15  ;  Matthews  v.  Baxter,  L.  R.  {8  Exch.)  132) ;  or  one  obtained  by  fraud 
{Moxon  V.  Payne,  L.  R.  {7  Ch.)  44^;  Montgomery  \.  Pickering,  116  Mass. 
227 ;   Bradley   v.  Chase,  22  Me.   511;    Pearsoll  v.    Chapin,  44  Pa.  St.  9; 


6  Steav.]  FEBRUAHY  TERM,  1881.  503 

Blakeley  v.  Blakeley. 

when  she  executed  the  deed,  was  insane.  The  deed  was  made  by 
a  mother  to  a  daughter,  both  of  whom  bore  the  masculine  name 
of  Sidney. 

The  mother's  mental  condition  is  thus  described  in  the  bill : 
Her  mind  was  so  unsound  and  deranged  that  it  was  impossible 
for  her  to  understand  the  purport  and  effect  of  a  deed,  and  she 
was  incapable  of  receiving  an  intelligent  impression.  If  this  is 
a  correct  description  of  the  mother's  mind  when  she  executed  the 
deed,  there  can  be  no  doubt  that  it  must  be  adjudged  voidable, 
for  the  test  in  this  class  of  cases,  when  no  fraud  is  alleged,  is,  had 
the  grantor  the  ability  to  comprehend,  in  a  reasonable  manner, 
the  nature  and  effect  of  the  act  he  was  doing  ?  If  he  had,  the 
deed  is  valid;  if  he  had  not,  it  is  voidable.  It  is  not  indispen- 
sable, in  order  to  validate  his  act,  that  he  should  be  entirely  free 
from  delusion  or  mania;  he  may  be  irrational  on  some  subjects 
and  yet  his  deed  be  valid.  A  suitor  seeking  to  set  aside  a  deed 
on  the  ground  of  insanity  in  the  grantor,  must  do  something 
more  than  show  the  mere  fact  of  insanity ;  he  must,  in  addition, 
show  that  the  transaction  which  he  challenges  was  affected  by 
the  grantor's  derangement.  Chief  Justice  Beasley,  speaking  for 
the  court  of  errors  and  appeals,  in  Lozear  v.  Shields,  8  C.  E. 
Gr.  510,  said  it  was  a  mistake  to  suppose  that  if  any  phase  of 
insanity  was  shown,  the  transaction  brought  in  question  must 
necessarily  be  held  invalid.  Mania  does  not,  per  se,  vitiate  a 
transaction,  for  the  question  in  such  cases  is,  has  the  transaction 
called  in  question  been  affected  by  it?  Proof  of  a  morbid  turn 
of  mind,  on  a  subject  entirely  disconnected  from  the  transaction 

Hanson  v.  Field,  4I  Miss.  712 ;  First  Nat.  Bank  v.  Gay,  63  Mo.  33);  or,  by 
forgery  {Brook  v.  Hook,  L.  R.  {6  Exch.)  89  ;  Wilkinson  v.  Stoney,  1  Jebb  &  S. 
509;  Ashpitel  v.  Bryan,  2  B.  &  S.  492 ;  Union  Bank  v.  Middlebrook,  33  Conn. 
95;  Howard  v.  Duncan,  3  Lans.  174;  Thorn  v.  Bell,  Hill  &  Den.  430;  Green- 
field Bank  v.  Crafts,  4  Allen  447;  Dow  v.  Spenny,  29  Mo.  3S6  ;  see  Bell  ads. 
Shields,  4  Harr.  93;  Forsyth  v.  Day,  46  Me.  176;  Terry  v.  Bissell,  26  Conn.  23  ; 
Walker  v.  St.  Louis  Bank,  5  Mo.  App.  214). 

While  there  may  be  a  ratification  of  a  tort  ( Cooley  on  Torts  127  ;  Broom's  Max, 
*679;  see  Stickney  v.  Munroe,  44  Me.  195 ;  Perrin  v.  Claflin,  11  Mo.  IS;  Moore 
V.  Rogers,  6  Jones  297),  semble,  there  can  be  none  of  a  crime  {Morse  v.  State,  6 
Conn.  9). 


604  CASES   IN   CHANCERY.  [33  Eq. 

Blakeley  v.  Blakeley. 

brought  in  judgment,  is  absolutely  irrelevant.  Substantially 
the  same  views  were  expressed  by  the  supreme  court  in  Eaton 
V.  Eaton,  S  Vr.  113. 

If  the  proofs  on  the  part  of  the  complainant  are  believed,  it  is 
fully  proved  that  the  mother  was  under  the  influence  of  insane 
delusions,  of  a  very  marked  and  decided  character,  about  the  time 
she  executed  the  deed  in  question.  She  believed  she  was  in 
danger  of  being  murdered  by  a  number  of  different  persons, 
among  whom  were  her  daughter  Sidney  and  a  prominent  clergy- 
man of  the  Roman  Catholic  church.  So  strong  was  this  delusion 
with  respect  to  her  daughter,  that  there  were  times  when  she 
would  not  take  food  prepared  by  her,  declaring  she  believed  it 
was  poisoned.  She  also  accused  her,  unjustly,  of  striking  her 
with  an  iron  bar,  and  of  driving  her  from  her  own  house.  It  is 
also  proved  that  shortly  before  the  deed  was  made,  she  approached 
one  of  her  grandchildren,  with  a  knife  in  her  hand,  declaring 
that  she  meant  to  kill  her;  that  while  under  the  influence  of  a 
mad  freak,  she  cut  a  night-dress,  belonging  to  this  grandcliild,  into 
strips;  it  is  also  proved  that  she  attempted  to  commit  suicide, 
by  cutting  her  throat  with  a  pair  of  scissors,  and  twice  reported, 
to  one  or  more  of  her  relatives,  that  the  daughter  to  whom  she 
made  the  deed  in  question  had  been  dead  for  some  time.  She 
seems,  also,  to  have  believed  that  those  to  whom  she  entrusted 
the  care  of  her  money  were  endeavoring  to  defraud  her.  If  this 
evidence  stood  alone,  I  think  it  would  be  very  difficult  to  resist 
the  conviction  that  the  grantor's  mind  was  so  thoroughly  wrecked, 
and  her  reason  so  completely  dethroned,  when  she  made  the  deed 

There  must  be  an  affirmance  or  disaffirmance  of  the  entire  contract  {McGuire 
V.  OaUahan,  19  Ind.  128  ;  Arnold  v.  Richmond  Iron  Works,  1  Gray  457 ;  Hun- 
ter V.  Steinbridge,  17  Ga.  243). 

What  acts  amount  to  a  ratification  {Grant  v.  Thompson,  4  Conn.  203 ;  Bas- 
sett  V.  Brown,  105  Mass.  551;  Van  Deusen  v.  Sweet,  51  N.  Y.  37S  ;  Williams 
V.  Inabet,  1  Bailey  343;  Bond  v.  Bond,  7  Allen  1;  FUzpatrick  v.  Comrs.,  7 
Humph.  224;  Ladd  v.  Hildebrant,  27  Wis.  135 ;  Thacher  v.  Pray,  113  3fass. 
291;  Gore  v.  Gibson,  IS  M.  &  W.  626,  Pollock,  C.B.;  Humphreys  v.  GuUlcrn,  13 
N.  H.  385;  Reinskopf  v,  Rogge,  37  Ind.  207;  Leslie  v.  Wiley,  47  N.  Y.  648 ; 
Kirk  V.  Glover,  5  Stew.  &  Port.  340;  Dean  v.  Yates,  22  Ohio  St.  388).  See, 
further,  Scanlan  v.  Cobb,  26  Am.  Law  Reg.  312,  note. — Eep. 


6  Stew.]  FEBRUARY  TERM,  1881.  505 


Blakeley  v.  Blakeley. 


in  question,  that  it  was  impossible  for  her  to  have  .had  anything 
like  a  reasonable  understanding  or  clear  apprehension  of  the  act 
she  was  engaged  in,  when  she  executed  it. 

But  almost  every  witness  who  testifies  to  acts  or  expressions 
tending  to  show  insanity,  also  says  there  were  times  when  she 
was  rational.  They  agree,  with  almost  entire  unanimity,  that  in 
all  her  business  matters  she  seemed  to  be  sane.  They  describe 
her  as  economical  to  meanness ;  one  says  of  her  that  she  was  so 
stingy  as  actually  to  deprive  herself  of  the  necessaries  of  life.  In 
all  matters  of  business  she  seems  to  have  acted  with  care  and 
caution ;  and  her  business  transactions,  so  far  as  they  have  been 
brought  to  the  attention  of  the  court,  seem  to  have  been  managed 
with  sound  judgment  and  good  sense.  She  obtained  title  to  the 
property  in  controversy  only  a  week  before  she  made  the  deed 
now  sought  to  be  set  aside.  The  deed  to  her  bears  date  May 
19th,  1877,  and  that  to  the  defendant  May  26th,  1877.  The 
complainant  does  not  deny  her  mother's  competency  to  acquire 
property;  indeed,  the  evidence  shows  that  she  negotiated  the 
purchase  with  great  shrewdness  and  tact.  No  change  in  her 
mental  condition  is  shown  to  have  taken  place  between  the  date 
of  the  deed  to  her  and  the  date  of  the  deed  from  her.  If  she 
was  competent  to  buy,  she  was  competent  to  convey.  Her  capa- 
city to  acquire  is  not  disputed.  The  acquisition  of  this  property 
by  the  grantor,  so  short  a  time  before  she  made  the  deed  in  dis- 
pute, and  the  fact  that  in  making  the  contract  of  purchase,  she 
acted  with  shrewdness  and  sound  judgment,  are  facts  possessing 
almost  decisive  weight  on  the  question  of  capacity.  Relief  should 
not  be  given  in  equity  on  a  case  which,  in  its  fundamental  facts, 
is  glaringly  inconsistent. 

But  the  question  of  the  case  is.  Did  the  grantor,  when  she  exe- 
cuted this  deed,  comprehend,  in  a  reasonable  manner,  the  nature 
and  effect  of  her  act?  The  act  itself,  in  view  of  the  facts,  was 
neither  irrational  nor  unjust.  She  paid  $1,650  for  the  property. 
She  had  already  given  the  house  where  she  lived  to  one  of  her 
sons.  The  grantee  of  the  deed  in  question  was  her  youngest 
daughter.  She  was  the  only  one  of  her  children  who  had  re- 
mained with  her  in  her  old  age.    The  others  had  left  her,  and  gone 


506  CASES  IN  CHANCERY.  [33  Eq. 

Blakeley  v.  Blakeley. 

out  into  the  world  to  do  for  tliemselves.  This  one  sometimes 
went  to  service,  but  when  she  did  so,  she  either  gave  her  wages 
to  her  mother  or  expended  them  in  the  purchase  of  necessaries  or 
comforts  for  her.  The  mother  said  she  was  the  best  child  she 
had.  This  praise  was  fully  warranted  by  the  daughter's  filial 
conduct.  Her  love  for  her  mother  was  very  strong.  On  one 
occasion,  when  it  was  suggested  that  her  mother  should  be  sent 
to  a  lunatic  asylum,  she  at  once  declared  that  her  mother  should 
never  be  sent  there  while  she  could  get  money  enough  to  keep 
her  out.  She  may  not  have  been  wise  in  her  love,  but  there  can 
be  no  doubt  about  its  sincerity.  While  the  other  children  were 
laboring  to  accumulate  property  for  themselves,  this  daughter  was 
devoting  her  life  to  her  mother.  They  were  not  only  willing 
that  she  should  make  this  sacrifice  for  her  mother's  sake,  but  they 
seemed  to  expect  her  to  do  it.  It  was,  therefore,  both  natural 
and  just  that  the  mother  should  feel  a  strong  preference  for  this 
daughter. 

But  the  most  satisfactory  evidence  in  elucidation  of  the  ques- 
tion propounded  by  the  case  is,  what  the  mother  said  in  explana- 
tion of  her  purchase,  and  why  she  had  conveyed  the  property  to 
the  defendant.  Sixteen  witnesses  have  repeated  remarks  made 
by  the  mother  upon  this  subject.  Three  of  them  testify  that  the 
mother  said,  in  March  or  April,  1877,  she  was  going  to  buy  a 
property  for  Sidney.  One  of  the  three  also  says  that  she  said  Sid- 
ney had  worked  hard  ;  had  been  good  to  her ;  had  waited  on  her, 
and  taken  good  care  of  her.  The  others  testify  to  declarations, 
extending  from  May,  1877,  to  January,  1878,  showing  that  the 
mother  fully  understood  that  she  had  purchased  a  property  in 
East  Orange,  and  had  afterwards  conveyed  i<t  to  Sidney.  In 
almost  every  instance,  she  gave  the  reason  which  induced  her  to 
convey  the  property  to  her  daughter.  One  of  them  narrates  his 
conversation  with  the  mother  in  this  fashion,  after  giving  the 
time  as  being  in  October,  1877  : 

"  She  asked  me  if  I  knew  anything  about  her  purchasing  a  property  in 
East  Orange ;  I  said  '  Yes,  you  told  me  about  it  before  I  went  away ;'  she 
said,  '  Why,  I  do  not  remember  it ;'  I  then  put  her  in  mind  of  what  she  said 
in  May  previous;  then  she  recollected.     I  then  asked  her  what  the  property 


6  Stew.]  FEBRUARY  TERM,  1881.  507 

Blakeley  v.  Blakeley. 

was  worth,  and  she  told  me  the  sum  she  bought  it  for ;  I  can't  remember  the 
amount  now.  I  then  asked  her  whether  she  was  really  going  to  give  it  to  Sid- 
ney, and  she  replied,  '  Who  has  got  a  better  right  to  it  ?'  " 

Taken  together,  these  declarations  show,  first,  that  the  mother 
was  sensible  of  her  obligations  to  her  daughter ;  second,  that  she 
intended  to  reward  the  daughter  for  her  sacrifices ;  third,  that  she 
made  the  purchase  for  the  purpose  of  giving  it  to  her  daughter, 
and  fourth,  that  the  conveyance  to  the  daughter  was  made  to  fulfill 
the  object  she  had  in  view  in  making  the  purchase.  It  would 
be  difficult,  I  think,  in  any  case,  to  furnish  more  conclusive  evi- 
dence that  a  grantor  fully  understood  and  appreciated  what  he 
was  doing,  when  he  made  a  deed,  by  proof  of  his  declarations 
and  statements,  than  is  presented  by  the  evidence  in  this  case. 

This  case  differs,  in  an  important  particular,  from  ordinary 
cases.  Ordinarily,  where  mental  incapacity  is  set  up  to  avoid  a 
deed,  the  grantor  conveys  something  which  he  has  owned  for  a 
considerable  period  of  time.  But  here,  the  grantor  obtained  title 
to  the  thing  conveyed  very  shortly  before  conveying  it,  and  for 
the  purpose  of  making  it  over,  by  way  of  gift,  to  her  child. 
And  this  case  is  marked  by  this  further  peculiarity :  those  who 
challenge  the  capacity  of  the  person  whose  act  they  bring  in 
question,  do  not  seek  to  avoid  that  part  of  her  act  by  which  she 
obtained  title,  but  merely  that  part  of  her  act  by  which  she 
divested  herself  of  title.  So  that  they  place  themselves  in  this 
incongruous  position :  she  was  sane  enough  to  negotiate  a  pur- 
chase, and  had  sufficient  understanding  to  accept  a  title,  but  she 
was  not  sane  enough  to  dispose  of  her  property  to  reward  a  child 
who  had  given  her  the  best  years  of  its  life. 

Though  the  deed  in  question  was  signed  and  acknowledged 
May  26th,  1877,  it  was  not  fully  executed  by  delivery  until 
November  12th,  1877.  It  is  not  proved  that  even  then  there 
was  an  actual  delivery.  The  person  who  had  possession  of  it  up 
to  that  date  says  that  he  gave  it  tlien  either  to  the  daughter  or 
the  mother,  but  he  does  not  distinctly  remember  which.  But  for 
another  i)iece  of  evidence,  it  might  be  doubted  whether  the  proof 
of  delivery  was  sufficient  to  pass  title.  But  it  is  proved  by  an 
insurance  agent  that  on  the  14th  of  November,  1877,  the  mother 


508  CASES  IN  CHANCERY.  [33  Eq. 

Blakeley  v.  Blakeley. 

applied  to  him  for  a  policy  on  this  property,  and  that  slie  gave  him  a 
description  of  the  house,  its  location,  stated  the  amount  of  insur- 
ance desired,  and  instructed  him  to  issue  the  policy  in  the  name 
of  Sidney  Blakeley,  jun.,  as  owner.  This  fact  I  regard  as  one 
of  great  weight,  aside  from  its  importance  on  the  question  of  de- 
livery. It  was  not  only  the  act  of  an  apparently  sane  mind,  but 
of  a  provident,  cautious  and  thoughtful  person. 

The  evidence,  I  think,  fully  demonstrates  that  the  mother, 
both  when  she  signed  and  acknowledged  the  deed  in  question 
and  when  she  executed  it  by  delivery,  fully  and  clearly  compre- 
hended what  she  was  doing,  and,  in  my  judgment,  her  acts,  in 
those  respects,  were  not  only  rational,  but  eminently  just. 

Another  topic  should  be  adverted  to.  A  deed  by  a  person  of 
non-sane  mind,  made  before  the  fact  of  insanity  is  found  by  in- 
quisition, is  not  void,  but  merely  voidable.  If  lucid  intervals 
occur,  after  the  deed  is  made,  and  in  such  intervals  the  grantor 
confirms  and  ratifies  the  deed,  it  thereby  becomes  unimpeachable. 
Allis  V.  Billings,  6  Met.  If.15 ;  Arnold  v.  Richmond  Iron  Worhs, 
1  Gray  43^ ;  Gibson  v.  Loper,  6  Gray  279  ;  \Vari  v.  Maxwell, 
6  Pick.  27.     In  Allis  v.  Billings,  the  court  say : 

"A  voidable  deed  is  capable  of  coafirmation,  and  if  a  grantor,  when  insane, 
makes  a  deed,  and  should  afterwards,  in  a  lucid  interval,  well  understanding  the 
nature  of  the  instrument,  ratify  and  adopt  it  as  his  deed,  as  by  receiving  the 
purchase-money  due  under  it,  this  would  give  effect  to  it,  and  render  it  valid 
in  the  hands  of  the  grantee." 

As  already  remarked,  nearly  all  of  the  witnesses  who  testify 
to  acts  or  expressions  indicative  of  insanity,  also  give  evi- 
dence showing  clearly  that  Mrs.  Blakeley's  fits  of  insanity  were 
but  of  temporary  duration,  and  were  always  succeeded  by  lucid 
intervals.  There  is  scarcely  a  witness  who  has  spoken  upon  the 
main  point  in  contest,  but  has  given  evidence  showing  more  or 
less  clearly  that  there  were  times  when  she  was  entirely  rational. 
Her  conduct  and  speech  remove  all  doubt  upon  this  point.  Her 
conversations  about  the  time  the  deed  was  made ;  her  declarations 
showing  why  she  intended  to  buy  this  property,  and  her  subse- 
quent declarations  showing  what  she  had  done  with  it ;  her  fre- 


6  Stew.]  FEBRUARY  TERM,  1881.  509 

Blakeley  v.  Blakeley. 

queut  acknowledgment  of  her  obligations  to  her  daughter,  and 
her  statement  of  the  considerations  which  influenced  her  iu 
making  the  property  over  to  her  daughter,  demonstrate  not  only 
that  her  mind  was  free  from  mania  or  delusion  at  those  times, 
but  that  she  fully  understood  what  she  had  done,  and  meant  to 
stand  by  her  act.  There  is  no  evidence  proving  directly  that,  at 
the  particular  time  when  this  deed  was  executed,  she  did  or  said 
anything  indicating  that  she  was  not  in  the  full  enjoyment  of  her 
reason  ;  on  the  contrary,  the  evidence  shows  she  was.  But  if  it 
had  been  shown  that  she  was  actually  insane  at  that  time,  still,  I 
think,  the  evidence  of  ratification,  when  her  mind  was  lucid  and 
she  was  free  from  delusion,  is  so  strong  and  full  that  the  court 
would  be  bound  to  declare  that  any  infirmity  which  had  existed 
originally  had  been  removed  by  confirmation. 

One  other  fact  should  be  noticed.  The  defendant  was  one  of 
the  persons  whom  the  mother  believed  had  designs  upon  her  life. 
While  this  delusion  lasted,  it  is  certain,  I  think,  that  the  mother 
would  bestow  nothing  upon  the  daughter  that  she  was  at  liberty 
to  withhold.  No  one  pretends  that  the  mother  ever  said,  when 
justifying  or  explaining  her  gift,  that  she  made  it  to  appease  the 
imaginary  hatred  of  her  daughter,  or  to  purchase  immunit}" 
from  the  evil  she  thought  her  daughter  intended  to  do  to  her. 
The  fact  that  she  was  at  times  subject  to  this  delusion  respecting 
her  daughter,  furnishes  very  cogent  evidence  that  she  was  free 
Irom  its  influence  at  the  time  this  deed  was  made. 

I  think  the  complainant's  case  fails  at  all  points,  and  that  her 
bill  should  be  dismissed,  with  costs. 


CASES 


ADJTXDGED  IK 


THE  PREROGATIVE   COURT 

OF 

THE  STATE  OF  NEW  JERSEY, 

FEBRUARY  TERM,  1881. 


Theodoee  Runyon,  Esq.,  Ordinary. 


Eliza  P.  Wanzer,  administratrix, 

V. 

Kate  Eldridge,  guardian  &c. 

Under  an  order  of  the  orphans  court,  an  administratrix  sold  lands  of  her 
intestate  to  pay  debts.  The  sale  was  announced  as  being  made  free  of  encum- 
brances, and  the  property  was  struck  off  at  $2,900,  and  the  sale  confirmed  by 
the  court.  Afterward,  the  purchaser  refused  to  comply  with  his  bid,  because 
a  sewer  assessment  and  two  judgments  against  former  owners  of  the  premises 
were  liens  thereon.  The  assessment  was  paid  off  before,  but  the  judgments 
not  until  after,  the  expiration  of  the  time  for  completing  the  sale.  The  admin- 
istratrix then  obtained  an  order  vacating  the  confirmation  order,  re-adver- 
tised the  property  and  tried,  without  success,  to  sell  it  again ;  she  also  peti- 
tioned the  court  for  directions  in  the  premises,  but  this  petition  waa  dismissed. — 
Held, 

(1)  That  she  was  not  chargeable  with  the  $2,900. 

(2)  That  her  petition  for  directions  was  properly  dismissed. 


Appeal  from  decree  of  Middlesex   orphans  court.     On  tes- 
timony and  state  of  the  case. 

(511) 


512  PREROGATIVE  COURT.  [33  Eq. 

Wanzer  v.  Eld  ridge. 
Mr.  S.  D.  Grimstead,  for  appellant. 
Mr.  C.  T.  Cowenhoven,  for  respondent. 

The  Ordinary. 

The  orphans  court  charged  the  appellant,  in  her  intermediate 
account  of  her  administration,  with  the  amount  of  $2,900  of  the 
purchase-money  at  which  certain  real  estate  of  the  intestate  was 
sold  by  her  to  raise  money  to  pay  debts,  under  an  order  of  the 
orphans  court.  The  order  was  made  March  16tli,  1875.  The 
purchasers  were  Francis  M.  Oliver  and  Jarvis  Wanzer,  jun.  The 
sale  was  duly  reported  to  the  orphans  court,  and  was  con- 
firmed June  1st,  1875.  Subsequently,  the  purchasers  having 
refused  to  accept  the  deed  and  complete  their  purchase,  she  ap- 
plied to  the  orphans  court  for  an  order  setting  aside  the  order 
of  confirmation,  and  for  a  new  order  of  sale.  It  appears,  by  the 
state  of  the  case,  that  this  application  was  granted,  and  she  was 
orally  (but  no  order  was  entered)  directed  by  the  court  to  pro- 
ceed to  sell  the  property  again,  and  then  report  the  whole  pro- 
ceedings. She  accordingly  again  advertised  the  property,  and 
put  it  up  for  sale,  but  has  not  been  able  to  get  any  bid  for  it, 
and  it  still  remains  undisposed  of.  The  intermediate  account 
above  mentioned  was  rendered  in  pursuance  of  the  requirement 
of  a  cttatiou.  The  administratrix  did  not  charge  herself  therein 
with  the  $2,900,  or  any  part  of  it ;  nor  did  she  ever  receive  it, 
or  any  part  of  it.  The  respondent  excepted  to  the  account  be- 
cause the  administratrix  had  not  charged  herself  with  the  $2,900. 
Before  the  exception  came  on  for  hearing,  the  admin isti'atrix  ap- 
plied by  petition,  to  the  orphans  court,  for  direction  in  the 
matter  of  the  sale,  but  the  prayer  of  the  petition,  after  hearing 
thereon,  was  denied.  It  appears  that  at  the  sale  at  which 
Oliver  and  Wanzer  purchased  it  was  orally  stated  by  the  auc- 
tioneer, immediately  after  he  read  the  conditions,  which  were  in 
writing,  that  the  property  was  to  be  sold  free  of  all  encumbrance. 
Oliver  swears  to  the  fact  distinctly  and  explicitly.  He  testifies, 
further,  that  the  administratrix  also  told  him  the  same  thing.  The 
auctioneer  swears  that  he  said  in  the  presence  of  all,  in  answer  to 


6  Stew.]  FEBRUARY  TERM,  1881.  *         513 

Wanzer  v.  Eldridge. 

a  question,  that  the  property  was  to  be  sold  free  of  encumbrances, 
and  he  adds  that  he  presumes  that  that  statement  is  in  the  condi- 
tions. It  appears,  however,  that  it  is  not.  The  administratrix 
corroborates  Oliver,  She  swears  that  she  told  Wanzer  positively 
that  if  he  should  buy  the  property,  he  should  have  a  title  free 
from  all  encumbrance — that  she  would  clear  it  of  all  encumbrance. 
She  says,  also,  that  she  told  the  auctioneer  to  sell  free  from  all 
encumbrances.  She  also  says  that  she  did  not  then  know  of  the 
existence  of  the  judgments  hereinafter  mentioned.  There  is  no 
room  to  doubt  that  the  property  was  sold  free  of  all  encumbrance. 
Oliver  placed  in  the  hands  of  his  counsel  ^2,200  in  cash  and  his 
note  for  ^700,  for  the  purchase-money,  to  be  handed  over  when 
the  title  should  be  approved  by  his  counsel.  The  property,  at 
the  time  of  the  sale,  was  subject  to  a  sewer  assessment  of  $700, 
and  also  to  the  lien  of  two  judgments  for  about  $4,000,  against 
previous  owners.  The  administratrix,  on  the  26th  of  July,  1875, 
tendered  a  deed,  duly  executed,  to  the  purchasers,  and  required 
them  to  complete  the  purchase.  It  would  seem  that  the  sewer 
assessments  had  then  been  paid  by  her.  They  referred  her 
attorney,  who  made  the  tender,  to  their  counsel,  who  refused  to 
accept  the  conveyance,  on  the  ground  that  the  property  was  sub- 
ject to  the  lien  of  the  judgments.  The  administratrix  proceeded 
to  obtain  a  release  of  the  property  from  that  lien,  and  when,  after 
having  succeeded  in  doing  so,  she  again  (but  not  till  after  the 
time  fixed  in  the  conditions  of  sale  for  the  delivery  of  the  deed 
had  passed)  tendered  the  deed  to  Oliver  and  his  counsel,  they 
refused  to  accept  it,  saying  that  they  had  made  other  disposition 
of  the  money  which  Oliver  had  left  in  the  hands  of  his  counsel, 
and  had  given  up  the  idea  of  taking  the  property,  and  had  sup- 
posed that  the  administratrix  had  also  abandoned  all  expectation 
that  they  would  take  it.  Upon  the  foregoing  statement  of  facts, 
there  appears  to  be  no  ground  for  charging  the  administratrix 
with  the  purchase-money.  The  decree  of  the  orphans  court, 
allowing  the  exception  and  surcharging  the  account,  will  be 
reversed,  wdth  costs. 

The  administratrix  appealed,  also,  from  the  order  denying  the 
prayer  of  her  petition  for  direction  as  to  her  further  proceedings 

33 


514  PREROGATIVE  COURT.  [33  Eq. 

Andrews's  Case. 

in  reference  to  the  sale  of  the  land.  The  orphans  court  was 
right  in  that  matter.  The  purchasers  having  failed  to  complete 
their  purchase,  it  was  the  duty  of  the  administratrix  to  proceed 
to  a  resale  without  further  order.  The  order  complained  of  will 
be  affirmed,  with  costs. 


In  the  matter  of  the  propounding  for  probate  of  a  paper  writing, 
purporting  to  be  the  last  will  of  Ann  Jane  Andrews, 
deceased,  late  of  Jersey  City. 

1.  The  testamentary  capacity  of  a  testatrix  who  executed  her  will  in  tha 
later  stages  of  pulmonary  consumption,  established  against  the  hypothetical 
opinions  of  experts  as  to  the  effect,  upon  the  mind,  of  the  medicines  usually 
employed  in  such  cases. 

2.  The  charge  of  undue  influence  exerted  on  testatrix  by  her  mother,  hex 
eole  legatee  and  executrix,  held  not  to  be  sustained,  it  appearing  that  testatrix 
had  been  obliged,  by  her  husband's  cruelty,  to  leave  him  and  return  to  het 
parent's  house ;  and  that  testatrix  also  desired  her  mother  to  have  the  care 
and  custody  of  her  infant,  in  preference  to  its  father. 


The  Ordinary. 

On  the  6th  of  August,  1878,  Mrs.  Ann  Jane  Andrews,  now 
deceased,  then  the  wife  of  James  B.  Andrews,  of  Jersey  City, 
executed  an  instrument  of  writing  as  her  last  will  and  testament, 
in  the  presence  of  Rev.  Fernando  C.  Putnam,  the  pastor  of  the 
church  she  attended  when  in  health,  Edward  D.  Gill  more,  esq., 
the  lawyer  employed  to  draw  the  will,  and  Mrs.  Mary  T.  Cham- 
berlain, a  neighbor  and  acquaintance  of  the  testatrix,  as  test:i- 
mentary  witnesses.  Three  days  previous  to  the  making  of  the 
will,  the  testatrix,  who  was  ill  of  pulmonary  consumption,  left 
her  husband's  house,  which  adjoined  that  of  her  father,  Isaac 
Cordukes,  and  went  to  the  latter  house,  and  she  remained  there 
until  she  died,  which  was  on  the  26th  day  of  August,  1878, 
twenty  days  after  the  making  of  the  will. 


6  Stew.]  FEBRUARY  TERM,  1881.  515 

Andrews's  Case. 

The  will  was  executed  at  her  father's  house,  and  with  all  due 
legal  formalities ;  and  the  testamentary  witnesses  all  testify  to  her 
capacity.  By  the  will,  she  gave  all  her  property  to  her  mother, 
whom  she  constituted  executrix.  The  testatrix  was  the  second 
wife  of  Mr.  Andrews,  to  whom  she  was  married  on  the  1st  of 
June,  1876.  By  him  she  had  one  child,  a  boy,  born  in  Septem- 
ber, 1877.  Her  property  was  never  of  large  amount.  She 
appears  to  have  had  about  $1,000,  which  were  given  to  her  by 
her  relatives  when  she  was  married;  $500  of  which  were  in  casli 
(afterwards  invested  in  a  bond),  given  to  her  by  her  uncle 
Thomas,  and  $500  in  a  bond,  a  present  from  her  aunt,  whose 
namesake  she  was.  She  had,  also,  a  pair  of  diamond  ear-rings, 
given  to  her  by  her  uncle  Jonathan,  and  a  piano-forte,  the  gift 
of  her  mother.  Besides  these  things  she  had  a  few  trinkets  and 
her  wearing  apparel.  All  the  jewelry  that  she  had  received  from 
her  husband,  she  returned  to  him  after  she  left  his  house,  with 
the  exception  of  one  little  ring;  so  that  the  property  which,  by 
her  will,  she  gave  to  her  mother,  had  all  been  received  from  her 
own  family.  Mr.  Gillmore  testifies  in  regard  to  the  execution 
of  the  instrument,  that  the  paper  was  signed  on  the  6th  of  Au- 
gust, 1878 ;  that  there  were  present  the  testatrix,  Mr.  Putnam, 
Mrs,  Chamberlain  and  himself;  that  the  testatrix  was  sitting  in 
a  chair  near  the  bed ;  that  he  read  the  will  to  her  and  she  signed 
it,  the  seal  being  on  already ;  that  he  asked  iier  whether  she 
signed,  sealed,  published  and  declared  it  to  be  her  last  will  and 
testament,  and  she  answered  that  she  did,  and  that  he  then  asked 
her  whether  she  requested  Mr.  Putnam  and  himself  and  Mrs. 
Chamberlain  to  sign  as  witnesses,  and  she  answered  that  she  did 
so  request  them.  He  further  says  that  then  Mr.  Putnam  signed 
his  name  as  a  witness,  he,  Mr.  Gillmore,  signed  his,  and  Mrs. 
Chamberlain  hers.  He  further  says  that  the  testatrix  signed  her 
name  in  the  presence  of  these  three  witnesses ;  that  they  were 
present  when  he  asked  her  whether  she  signed,  sealed,  published 
and  declared  it  to  be  her  last  will  and  testament,  and  when  she 
answered  that  she  did,  and  that  they  were  present  when  she 
requested  them  to  sign  as  witnesses,  and  signed  in  the  presence 
of  each  other  and  in  her  presence.     He  says,  speaking  on  thii 


516  PREROGATIVE  COURT.  [33  Eq. 

Andrews's  Case. 

Bubject  of  her  capacity,  that  she  seemed  to  understand  clearly 
•what  she  was  doing,  and  after  the  will  was  executed,  asked  him 
whether  her  husband  could  keep  or  get  (he  says  he  forgets  which 
expression  she  used)  her  property  after  that.  Mr.  Putnam  says 
she  seemed  perfectly  to  understand  the  will  she  was  executing, 
and  the  nature  of  the  act  she  was  performing;  and  Mrs.  Cham- 
berlain testifies  to  the  same  effect.  Mr.  Gillmore  drew  the  will, 
and  he  testifies  on  the  subject  of  his  instructions  for  it,  which  he 
received  from  the  testatrix.  He  says  slie  inquired  of  him 
whether  she  could  leave  her  property  so  that  her  husbaud  would 
not  get  it,  or  could  not  keep  it,  and  he  told  her  he  thought  she 
could,  and  promised  to  draw  the  will.  He  says  she  spoke  to  him 
about  her  bonds,  and  said  her  husband  had  them  •  that  he  asked 
her  if  they  had  been  converted  into  cash,  and  she  said  it  was  not 
by  her  consent  that  her  husband  had  appropriated  those  bonds  to 
his  own  use.  He  says  she  spoke  also  of  the  jjiano-forte,  and  said 
it  was  a  wedding  present.  Mr.  Gillmore  also  testifies  that  she 
spoke  to  him  in  reference  to  her  child,  and  asked  him  if  she  could 
keep  it;  and  he  told  her  he  thought  she  could,  as  long  as  she 
stayed  at  her  father's  house.  A  few  days  after  that  her  husband 
began  proceedings,  by  habeas  corpus,  to  obtain  the  custody  of  the 
child. 

The  contestant  is  Mr.  Andrews,  and  he  resists  the  admission 
of  the  paper  to  probate  as  the  will  of  his  wife,  on  the  ground  of 
incompetency  and  undue  influence  on  the  part  of  her  mother,  her 
legatee  and  executrix.  To  the  testimony  of  the  testamentary 
witnesses,  he  opposes  that  of  several  physicians  produced  by  him 
as  experts  in  reference  to  the  effect  of  the  disease  of  the  testatrix 
and  the  medicines  administered  (which  were  the  usual  palliatives 
and  alteratives  given  in  like  cases),  on  the  mind  of  the  patient. 
As  was  to  have  been  expected,  their  testimony  is  by  no  means  of 
a  decisive  character.  Indeed,  it  is  of  but  little,  if  any,  service 
in  the  judicial  inquiry.  To  their  hypothetical  deductions  is 
opposed  the  reality  of  the  case  in  hand.  In  opposition  to  their 
conclusions  as  to  what,  on  their  hypotheses,  the  mental  condition 
of  the  patient  in  the  suppositional  case  should  be,  is  the  fact  of 
what  the  mental  condition  of  the  patient,  in  the  actual  case,  was. 


6  Stew.]  FEBEUARY  TERM,  1881.  517 

Andrews's  Case. 

It  is  worthy  of  remark  in  this  connection,  that  Dr.  J,  D.  McGill 
and  Dr.  Theodore  R.  Varick,  called  as  experts  on  the  part  of  the 
proponent,  testify  to  the  fact  which  may  be  said  to  be  within 
common  observation,  also,  that  the  mind  of  a  person  ill  of  pul- 
monary consumption  is  but  little,  if  any,  affected  by  the  pro- 
gress of  the  disease  or  the  medicines  usually  administered  in  sucli 
cases.  Dr.  Varick,  to  the  question  whether,  in  his  judsfment 
there  is  anything  in  the  presence  of  the  ordinary  symptoms  of 
consumption  of  the  lungs,  together  with  such  treatment  as  was 
given  in  the  case  in  hand,  to  impair  the  patient's  mind,  so  as  t*^ 
prevent  him  or  her  from  doing  ordinary  business,  answers,  "Not 
at  all ;  as  a  rule,  the  intellect  remains  intact.  In  my  experience 
[referring  to  consumptive  patients],  the  intellect  has  remained 
intact  up  to  the  last."  And  here  it  should  be  stated  that  Dr. 
Culver,  Mrs.  Andrews's  physician,  says  not  only  that  the  testatrix 
had  as  much  intelligence  as  an  ordinary  consumptive  in  her  stage 
of  the  disease,  but  that  she  was  one  of  those  persons  who  could 
marshal  their  forces,  and  that  she  could  do  as  much,  perhaps, 
under  the  same  conditions,  as  any  one.  When  asked  whether  he 
would  say  that  consumptives,  as  weak  as  she  was  on  the  day  the 
will  was  made,  and  taking  the  same  opiates  which  she  then  took, 
would  be  incapable  of  making  a  will,  he  answers  in  the  negative, 
and,  afterwards,  says  he  does  not  tliink  she  was  incapable  of 
making  a  will.  In  the  case  under  consideration,  there  is  no  evi- 
dence of  any  want  of  mental  capacity  on  the  part  of  the  testatrix; 
but,  on  the  other  hand,  the  proof  is  clearly  to  the  contrary. 

The  contestant  insists,  however,  as  before  stated,  that  the 
testatrix  was  induced  to  make  the  will  through  undue  influence, 
which  he  attributes  to  her  mother,  and  perhaps  the  other  mem- 
bers of  her  father's  family,  and  other  persons  who  were  with  her 
in  her  latter  days.  It  is  not  necessary  to  consider  at  any  length 
the  testimony  which  has  been  adduced  on  the  subject.  Out  of 
the  great  mass  of  it,  a  few  decisive  facts  are  deducible.  The 
testatrix  had  left  her  husband's  house  because  of  his  ill  treatment 
of  her  before  she  left  it  in  August,  1878.  In  October,  1877, 
she  left  him  and  went  to  her  father's,  giving  as  her  reason  that 
he  had  treated  her  cruelly,  aud  abused  and  hurt  her  physically, 


518  PREROGATIVE  COURT.  [33  Eq. 

Andrews's  Case. 

and  she  was  at  that  time  desirous  of  obtaining  a  permanent  sepa- 
ration from  him  on  that  account,  and  consulted  counsel  with  a 
view  to  taking  measures  to  that  end,  but  returned  to  him  on  his 
})romisiug  that  he  would  endeavor  to  be  a  better  man  and  a  bet- 
ter husband.  Ou  that  occasion  she  was  away  from  him  for 
several  days.  The  evidence  is  that  the  violence  of  which  she 
complained  was  two  blows  which  he  struck  her  on  the  head  with 
his  fist,  because,  as  he  alleged,  she  had  neglected  to  feed  his 
horse.  She  left  him  again  the  3d  of  August,  1878,  as  before 
mentioned.  The  cause  of  her  leaving  ou  that  occasion  was,  as 
before,  his  unkind  treatment  of  her.  He  was  given  to  frequent 
and  gross  intoxication,  and  on  such  occasions  was  rude  and  vio- 
lent towards  her.  In  her  condition  of  health,  his  treatment  be- 
came insufferable.  He  was  at  war  with  her  family,  and  ordered 
her  mother  out  of  his  house,  and  finally,  violently  put  her  out 
of  the  room  where  she  was  with  his  wife.  It  is  proved  that  on 
one  occasion  when  he  was  drunk  he  came  into  the  room  and  sat 
down  on  his  wife's  bed,  and  in  so  doing  hurt  her  by  sitting  on 
her  legs.  She  upbraided  him  for  it,  saying  that  he  would  kill 
her,  or  that  she  would  die,  to  which  he  replied  by  saying,  "  Die 
and  be  damned."  His  language,  was  on  some  of  those  occasions, 
violent,  abusive,  profane  and  blasphemous.  He  made  false  and 
unfounded  charges  (even  of  criminal  conduct)  against  her  friends. 
He  was  frequently  brought  home  in  a  state  of  extreme  intoxica- 
tion, to  her  great  annoyance.  Not  one  alone,  but  many  witnesses 
testify  to  this  conduct  on  his  part,  and  he  opposes  to  it  practi- 
cally nothing  but  his  own  bare  denial.  His  testimony  bears 
frequent  internal  evidence  of  its  unreliableness,  and  the  spirit  in 
which  it  is  given,  and  which  throughout  pervades  it,  makes  it 
painfully  apparent  that  he  is  actuated  in  this  litigation  by  a  de- 
sire to  do  as  much  injury  as  possible  by  means  of  it  to  his 
father-in-law's  family,  and  that  too,  without  regard  to  the 
memory  of  the  testatrix.  Irrespective  of  all  other  considerations, 
the  weight  of  evidence  is  entirely  against  him.  The  estate  for 
which  this  litigation,  so  great  in  its  proportions,  is  carried  on  by 
him  in  such  an  inordinate  manner,  is  of  but  small  value,  compar- 
atively, at  most.     His  wife's  property  at  her  death,  according  to 


6  Stew.]  FEBRUARY  TERM,  1881.  519 

Andrews's  Case. 

his  claim,  did  not  include  the  bonds  or  the  piano,  and  consisted 
only  of  her  wearing  apparel  and  her  diamond  earrings  and  some 
trinkets.  On  taking  out  letters  of  administration  upon  her 
€state,  he  gave  bond  in  the  sum  of  $2500,  but  appears  to  have 
regarded  that  as  much  beyond  what  the  value  of  the  estate 
would  reasonably  require.  One  of  the  bonds  he  swears  he  con- 
verted into  money,  with  his  wife's  consent,  in  her  lifetime,  and 
handed  her  the  money,  and  he  says  she  spent  it  in  household 
expenses,  and  he  claims  to  be  the  owner  of  the  other  by  gift 
from  her.  He  says  she  transferred  the  piano  also  to  him,  and 
that  she  therefore  did  not  own  it  when  she  died.  And  here  it 
may  be  remarked,  as  bearing  upon  his  disposition  in  this  litiga- 
tion, that  when  he  applied  for  the  letters  of  administration  he 
made  oath,  though  he  knew  of  the  existence  of  the  will,  that  his 
wife  died  without  a  will,  as  far  as  he  knew  and  as  he  verily  be- 
lieved. 

On  the  argument  much  stress  was  laid  by  his  counsel  on 
the  fact  that  by  the  will  the  testatrix  makes  no  provision  for 
her  infant  child,  but  it  is  proved  that  she  desired  that  the  child, 
which  was  less  than  a  year  old,  should  be  delivered  to  her 
mother,  and  it  appears  by  her  husband's  own  testimony  that  but 
a  very  short  time  before  her  death,  when  he  asked  her  if  there 
was  anything  that  she  wanted  him  to  do,  she,  after  telling  him 
that  she  wished  to  be  buried  near  her  brother,  desired  of  him 
that  her  mother  might  be  allowed  to  keep  the  child,  and  he  says 
he  refused  the  request,  saying  that  that  could  not  be.  Thus  with 
her  dying  breath  she  declared  her  wish  that  her  mother  should 
have  charge  of  her  child.  But  it  is  further  in  proof  that  she  said 
previously,  on  the  subject  of  the  support  of  the  child,  that  her 
husband  was  able  to  provide  for  it,  as  in  fact  he  was,  and  is. 
Irrespective,  however,  of  all  this,  the  amount  and  character  of 
her  property  was  not  such  as,  under  the  circumstances,  to  lend 
aid  to  the  opposition  to  the  will  from  the  consideration  of  its  un- 
naturalness.  That  there  was  hostility  between  her  family  and 
her  husband  is  beyond  question,  but  it  seems  to  have  been  occa- 
sioned, to  a  very  great  extent  at  least,  by  his  treatment  of  her. 
It  is  equally  clear  that  when  the  testatrix  last  left  her  husband,  she 


520  PEROGATIVE  COURT.  [33  Eq. 

Wagner  v.  Sharp. 

was  full  of  indignation  against  liim,  because  of  his  conduct 
towards  her,  and  that  from  that  time  she  was  not  only  not  desirous 
of  seeing  him  again,  but  was  unwilling  to  do  so.  He  had  by 
his  conduct  wholly  estranged  her  from  him,  and  of  her  own  ac- 
cord she  sought  by  means  of  her  will  to  give  to  her  mother,  who 
she  hoped  might  be  permitted  to  take  care  of  her  child,  whatever 
property  she  had,  all  of  which  had  been  derived  from  her  own 
relatives,  and  none  of  it,  except  it  may  be  some  wearing  apparel, 
from  her  husband. 

The  will  will  be  admitted  to  probate,  and  the  caveator  will  be 
required  to  pay  the  cost  of  the  litigation. 


CATHAREsrE  Wagner,  appellant, 

V, 

Sharp  et  al.,  respondents. 

Where  all  of  the  next  of  kin  are  children  of  brothers  and  sisters,  they  take 
per  capita. 

Appeal  from  decree  of  orphans  court  of  Morris  county. 
Mr.  J.  G.  Shipman  and  3fr.  G.  M.  Shipman,  for  appellant. 
Mr.  a.  C.  Pitney,  for  respondents. 

The  Ordinary. 

The  question  presented  is  in  reference  to  the  distribution  of 
the  personal  estate  of  an  intestate  who  left  neither  widow  nor 
descendants,  nor  father  or  mother,  or  brother  or  sister,  but  whose 
next  of  kin  were  thirty-six  nephews  and  nieces,  the  children  of 
his  nine  deceased  brothers  and  sisters.  The  orphans  court  di- 
rected that  tlie  distribution  be  made  to  the  nephews  and  nieces 
per  capita.  The  appellant,  who  is  the  only  child  of  a  sister  of 
the  intestate,  insists  that  the  distribution  should  be  per  stirpes, 


6  Stew.]  FEBRUARY  TERM,  1881.  521 

Wagner  v.  Sharp. 

and  not  pe?'  capita.  The  statute  pi-nvides  that  in  case  there  be 
)io  children,  nor  any  legal  representative  of  them,  then  one  moiety 
of  the  estate  shall  be  allotted  to  the  widow  of  the  intestate,  and 
the  residue  shall  be  distributed  equally  to  every  one  of  the  next 
of  kindred  of  the  intestate  who  are  in  .equal  degree,  and  those 
who  represent  them  ;  provided  that  no  representation  shall  be 
admitted  among  collaterals  after  brothers'  and  sisters'  children. 
And  that  in  case  there  be  no  widow,  all  the  estate  shall  be  dis- 
tributed equally  to  and  among  the  children  ;  and  in  case  there 
be  no  child,  then  to  the  next  of  kindred  in  equal  degree  of  or 
unto  the  intestate  and  their  legal  representatives  as  aforesaid,  and 
in  no  other  manner  whatever.  The  English  statute  (of  2^  and 
^3  Car.  II.  c.  10),  of  which  the  above  is  an  almost  literal  copy, 
had,  when  the  latter  became  part  of  our  law,  been  so  often  and 
authoritatively  construed  on  the  very  point  raised  by  this  appeal 
that  the  construction  was  then  settled.  Walsh  v.  Walsh,  1  Eq. 
Cas.  2If.9  ;  Janson  v.  Bury,  Bunh.  157 ;  Durant  v.  Prestwood, 
1  Ath.  JfS4-;    Stanley  v.  Stanley,  Id.  4^5 ;  Lloyd  v.  Tench,  2 

Note. — In  the  following  cases  the  heirs  or  next  of  kin  in  equal  degree  took 
•ptr  capita : 

In  Miller's  Appeal,  40  Pa.  St.  3S7,  one  died  intestate,  leaving  as  his  heirs  at 
law  the  children  of  his  three  deceased  brothers,  one  brother  leaving  one  child, 
another  four  children,  and  the  third  nine  children;  also,  Krout's  Appeal,  60 
Pa.  St.  382,  Thompson,  O.  J.;  Davis  v.  Rowe,  6  Band.  355. 

In  Stent  v.  McLeord,  2  McCord  Ch.  354,  an  intestate  left  a  nephew,  the  son 
of  a  deceased  brother,  and  four  nephews  and  nieces,  the  children  of  a  deceased 
sister,  his  next  of  kin. 

In  Snow  v.  Snow,  111  Mass.  3S9,  the  next  of  kin  of  an  intestate  were  the  son 
of  a  deceased  sister  and  the  four  children  of  another  deceased  sister. 

In  De  Haven's  Ca^e,  1  Clark  (Pa.)  336,  two  brothers  of  an  intestate  died  in 
her  lifetime,  one  leaving  one  child  and  the  other  seven  children. 

In  Clifton  v.  Holion,  27  Ga.  321,  a  testator  gave  certain  property  to  H.,  but 
if  H.  should  die  before  attaining  twenty-one,  then  over  to  H.'s  "  blood  rela- 
tions of  nearest  kin,  to  be  divided  equally  among  them."  H.  died  under 
twenty-one.  When  the  will  was  made  he  had  one  sister,  M.,  living,  four 
children  of  a  deceased  sister,  and  seven  of  another  deceased  sister.  M.  died 
after  the  testator,  but  before  H.,  leaving  six  children ;  see  Ennis  v.  Pettte,  3 
Bradf.  3S7 ;  Mortiner  v.  Slater,  L.  B.  {7  Ch.  Div.)  322. 

In  Shinner  v.  Wynne,  2  Jones  Eq.  41,  two  daughters  of  an  intestate  died  in 
the  lifetime  of  their  father,  one  leaving  two  children  and  the  other  one.  See 
Eshleman's  Estate,  74  Pa.  St.  4^. 


522  PREROGATIVE  COURT.  [33  Eq. 

'  Wagner  v.  Sharp. 

Ves.  Sen.  213.  It  was  established  that  where  an  iutestate  leaves 
brothers'  or  sisters'  childreu,  and  no  brother  or  sister,  the 
children  take  per  capita  as  next  of  kin,  and  not  by  representa- 
tion. It  is  unnecessary,  as  it  would  be  unprofitable,  to  do  more 
than  merely  cite  the  cases.  That  construction  has  remained 
ever  since  undisturbed.  2  Wms.  Exrs.  1513 ;  2  Kent^s  Com. 
4£5  ;  Ross's  Trust,  L.  R.  {13  Eq.)  286.  But  it  is  urged  that  by 
the  decision  of  the  court  of  errors  and  appeals,  in  Davis  v.  Van- 
do'veer,  8  C.  E.  Gr.  558,  it  is  held  that  the  right  of  representa- 
tion exists  among  brothers'  and  sisters'  children  inter  sese,  where 
there  is  no  unequal  kinship — no  brother  or  sister  of  the  intestate 
living  at  his  death.  The  language  of  the  court,  speaking  of  the 
proviso  of  the  act,  is ; 

"  It  has  been  well  settled  by  the  courts  in  England  for  over  a  century  and  a 
half,  and  always  acted  upon,  so  far  as  anything  to  the  contrary  appears,  since 
the  passage  of  the  act,  that  the  effect  of  this  proviso  is  to  limit  or  qualify  the 
right  of  representation  among  collaterals,  so  that  they  can  take  only  as  next 
of  kin  per  capita,  except  in  the  one  case  of  the  children  of  deceased  brothers 

In  Person's  Appeal,  74  Pa.  St.  121,  a  decedent  had  three  children,  all  of  whom 
died  in  his  lifetime,  the  first  leaving  one  child,  the  second  one,  and  the  third 
three. 

In  Brown  v.  Taylor,  62  Ind.  295,  an  intestate  left  no  children,  but  the  de- 
Bcendants  of  three  children,  viz.,  a  son  of  his  oldest  son,  a  daughter  and  son 
of  his  second  son,  and  two  sons  of  his  third  son.  See  Cox  v.  Cox,  44  Tnd.  S6S  ; 
Bransford  v.  Crawford,  51  6a.  20. 

In  McKinney  v.  Mellon,  S  HoiLSt.  277,  the  intestate's  next  of  kin  were  the 
children  of  two  deceased  sisters  of  his  father  of  the  whole  blood,  and  the 
children  of  four  deceased  sisters  of  his  father  of  the  lialf  blood.  See  Ed- 
wards  v.  Buchdale,  2  Hill  Gh.  416  ;  Hallet  v.  Hare,  5  Paige  315 ;  Redd  v.  Clop- 
ton,  17  Ga.  230. 

In  the  following  cases  they  took  per  stirpes : 

In  Jackson  v.  Thurman,  6  Johns.  322,  A  died  seized  of  lands,  leaving  B  and 
C,  children  of  a  deceased  sister,  and  D,  the  son  of  a  deceased  brother,  his  heirs 
at  law. 

In  Clement  v.  Cauble,  2  Jones  Eq.  82,  an  intestate  died  leaving  her  surviving 
one  child  of  a  deceased  brother.  A.,  two  children  of  another  brother,  H.,  and 
twenty-one  grandchildren  of  H.,  the  children  of  four  of  his  deceased  children, 
as  heirs  at  law. 

In  McComas  v.  Amos,  29  Md.  120,  an  intestate  left  as  his  next  of  kin  sev- 
eral nephews  and  nieces,  and  also  several  grand-nephews  and  grand-nieces ; 
the  latter  were  excluded,  and  the  former  took  per  stirpes. 


6  Stew.]  FEBRUARY  TERM,  1881.  523 

Wagner  v.  Sharp. 

and  sisters  of  the  intestate,  among  whom  alone,  of  the  collaterals,  the  right  to 
take  per  stirpes  by  way  of  representation  may  exist." 

The  case  before  the  court  was  one  of  unequal  kinship,  and  it  was 
held  that  first  cousins  take  the  personal  estateof  the  intestate,  to  the 
exclusion  of  children  and  grandchildren  of  other  f  rst  cousins  de- 
ceased. Thequestionnowraised  was  not  before  the  court.  But  the 
language  of  the  court  is  not  indicative  of  any  dissent  from  what 
was,  up  to  that  time,  the  established  and  accepted  doctrine.  The 
meaning  obviously  is,  and  that  is  all  that  the  court  intended  to 
say,  that  the  right  of  representation  among  collaterals  is  limited 
to  brothers'  and  sisters'  children,  and  does  not  apply  at  all  to 
any  case  of  collaterals  where  the  next  of  kin  are  all  more  remote 
than  brothers  and  sisters.  The  decree  appealed  from  will  be 
affirtued  with  costs,  and  a  counsel  fee  of  $50  to  the  respondents, 
to  be  paid  out  of  the  estate  before  distribution. 

In  Kennedy  v.  Kennedy  (Conn.)  1  Swift's  System  2S6,  a  testator  devised  a  por- 
tion of  his  estate  among  his  relations,  according  to  the  laws  of  the  state  of  Con- 
necticut. He  had  five  brothers  and  sisters,  who  all  died  previously  to  the 
making  of  the  will,  each  leaving  a  different  number  of  children.  See  Pruden 
V.  Paxton,  79  N.  C.  446. 

In  Crump  v.  Faucett,  70  N.  O.  34^,  A  died  seized  of  real  and  personal  estate, 
leaving  him  surviving  three  grandchildren  by  a  son  and  five  by  a  daughter, 
both  son  and  daughter  having  died  before  A. 

In  Odam  v.  Caruthers,  6  Qa.  39,  decedent  left  a  wife  and  two  grandchildren, 
the  offspring  of  a  deceased  son,  and  seven  grandchildren,  the  offspring  of  an- 
other deceased  son.    See  Brenneman's  Appeal,  40  Pa.  St.  115. 

As  to  constructions  of  testamentary  gifts  to  nephews  and  nieces,  see  2  Jarm. 
on  Wills  (5th  Am.  ed.)  697 ;  also,  Harris's  Estate,  74  Pa.  St.  452 ;  Oun-y's  Es- 
tate, 39  CaL  529;  Thornton  v.  Roberts,  3  Stew.  Eq.  473;  Dildine  v.  Dildine,  5 
Slew.  Eq.  78;  Brower  v.  Bowers,  1  Abb.  App.  Dec.  214;  Grant  v.  Ch-ant,  L.  R. 
{2  P.  D.)  8,  5  a  P.  380,  727  ;  Hibbert  v.  Hibhert,  L.  R.  (15  Eq.)  372  ;  Weeds 
V.  Bri^tim,  L.  R.  (2  Eq.)  333;  Sherratt  v.  Mountford,  L.  R.  {15  Eq.)  305,  (8 
Ch.)  928;  Wells  v.  WeOs,  L.  R.  (18  Eq.)  604;  Payne  v.  Rosser,  53  Ga.  662; 
Cosgray  v.  Core,  2  W.  Va.  5,55.— Rep. 


524  PREROGATIVE  COURT.  [33  Eq. 


"Wilson  V.  Staats. 


Peter  Q.  Wilson  et  al.,  appellants, 

V, 

Peter  P.  Staats,  executor  <fec.,  respondent. 

1.  An  executor  is  justified  in  paying  the  funeral  expenses  of  an  indigent 
sister  of  the  testator,  for  whose  use  for  life  the  income,  and,  if  necessary,  the 
principal,  of  one-half  of  his  residuary  estate  had  been  given.  In  such  case 
the  funeral  expenses  are  necessaries. 

2.  An  executor's  investment  on  a  first  mortgage  on  lands,  worth  at  the  time, 
one-third  more  than  the  amount  loaned,  approved,  although  loss  to  the  estate 
subsequently  happened  ;  an  investment  on  a  second  mortgage,  exceeding,  with 
the  first  mortgage,  two-thirds  of  the  value  of  the  premises,  condemned, 

3.  An  executor  holding  a  bond  and  mortgage  of  one  who  makes  an  assign- 
ment for  the  benefit  of  his  creditors,  and  whose  estate  pays  a  dividend,  is  iu 
laches  in  not  presenting  the  claim  on  the  bond  to  the  assignee. 

4.  Semhle,  an  executor  who  resells  lands  bought  in  by  him  on  foreclosure  of 
mortgages  of  the  estate,  need  not  advertise  as  on  a  public  sale  under  the  statute. 

5.  Commissions  allowed,  no  bad  faith  being  shown. 


Appeal  from  decree  of  Somerset  orphans  court,  on  excep- 
tions to  the  final  account  of  the  respondent,  executor  &c., 
of  Henry  M.  Wilson,  deceased. 

Mr.  John  Schomj),  for  appellants. 

3Ir.  H.  M.  Gaston,  for  respondent. 

The  Ordinary. 

The  objections  brought  before  the  court  for  examination  and 
adjudication,  will  all  be  disposed  of  by  a  decision  of  the  follow- 

NoTE. — Even  where  an  estate  is  insolvent,  the  representatives  may  be  al- 
lowed the  expenses  of  a  funeral,  suited  to  the  condition  of  the  decedent  during 
life  {2  Wms.  on  Exrs.  9GS ;  Scott  v.  Dorsey,  1  Harr.  &  Johns.  283;  Edwards  v. 
Edwards,  2  Oromp.  &  M.  612) ;  and  such  debts  are  preferred  to  those  of  the 
government  ( United  States  v.  Eggleston,  4  Sawy.  199.  See  Rex  v.  Wade,  5  Price 
621). 

An  undertaker  may  recover  of  the  executor,  if  employed  by  him  {Booney'a 
Estate,  3  Redf.  15;   Green  v.  Salmon,  S  Ad.  <£■  EL  S.'fS ;  Arbat  v.  Churchland,  ? 


6  Stew.]  FEBRUARY  TERM,  1881.  525 


Wilson  V.  Staats. 


iug  questions:  whether  the  executor  had  authority,  under  the 
provisions  of  the  will,  to  provide,  out  of  the  residue  of  the  estate, 
for  the  burial  of  the  testator's  sister  Jane,  to  whom  and  his 
brother  Dowe  the  use  of  the  residue  was  given  for  life;  whether 
the  investments  of  the  money  of  the  estate  on  mortgage  of  the 
Voorhees  and  Wallace  properties,  respectively,  were  proper; 
whether  the  executor  ougiit  not  to  have  proved  the  debt  on  ihe 
Wallace  bond,  under  Wallace's  assignment  for  the  benefit  of  his 
creditors  ;  whether  the  executor's  sale  of  the  property  obtained 
under  foreclosure  of  the  Wallace  mortgage  was  on  lawful  notice, 
and  whether  the  executor  is  entitled  to  any  commissions,  and  if 
so,  at  what  rate. 

The  will  gave  all  the  residue  of  the  estate  to  be  divided 
equally  between  the  testator's  sister  Jane  and  his  brother 
Dowe,  "  the  money  to  be  put  on  bond  and  mortgage,  and  the  in- 
terest to  be  paid  to  them  yearly,  for  their  support ; "  with  the 
further  provision  that,  "  if  the  interest  should  prove  insufficient 
for  the  {)urpose,  then  so  much  of  the  principal  as  might  be  nec- 
essary for  the  purpose,  should  be  applied  thereto."  These  two 
persons,  the  legatees,  were  both  poor.  One  of  them  appears  to 
have  been  very  sick  and  imbecile  in  mind.  The  testator  in- 
tended to  devote  to  their  support,  for  life,  the  entire  residuum  of 
his  ^  estate,  if  necessary  for  the  purpose.  He  first  provided  that 
they  should  have  the  residue  in  equal  shares ;  this  is  followed 

You.  &  Jer.  32) ;  or  the  expense  be  afterwards  ratified  by  him  {Lucy  v.  Wul- 
rond,  3  Bing.  N.  C.  8U ;  Meert  v.  Moessard,  1  Moo.  &P.8). 

When  furnished  at  the  request  of  a  third  person,  query  as  to  the  executor's 
liability  {Rogers  v.  Price,  3  You.  &  Jer.  27 ;  Price  v.  Wilson,  3  Nev.  &  M.  512  ; 
Frances  Estate,  75  Pa.  St.  220;  Walker  v.  Taylor,  6  C.  &  P.  752;  Comer  v. 
Shew,  3  M.&  W.  350 ;  Gregory  v.  Hooker,  1  Hawks  392;  Fitzhugh  v.  Fitehugh, 
11  Gratt.  300;  Hewett  v.  Bronson,  5  Daly  1). 

As  to' the  representative's  personal  liability  {Fa'rin  v.  Myrick,  53  Barb.  76, 
41  N.  Y.  315  ;  Bappelyea  v.  Russell,  1  Daly  214). 

A  coflBn  and  grave  clothes  purchased  by  defendant  for  his  mother-in-law, 
vrho  died  a  member  of  his  family,  were  deemed  necessaries  {Thompson  v. 
Smith,  57  N.  H.  306.  See  Camden  v.  Fletcher,  4  M.  &  W.  378;  Meert  v.  Moes- 
sard,  1  Moo.  &P.S). 

If  paid  by  the  heir  at  law  voluntarily,  he  cannot  be  re-imbursed  from  the 
personalty  of  intestate  {Coleiyy  v.  Coldby,  12  Jur.  {N.  S.)  496). 


52G  PREROGATIVE  COURT.  [33  Eq. 

"Wilson  V.  Staats. 

l)y  the  direction  that  it  be  invested  on  bond  and  mortgage,  and 
the  interest  paid  to  thera  yearly,  for  their  support,  and  he  then 
adds  that  if  the  interest  should  prove  insufficient  for  the  pur- 
pose, the  principal  should  be  used  as  far  as  might  be  necessary. 
His  language  was,  "  and  if  the  interest  should  prove  insufficient, 
then  so  much  of  the  principal  must  be  taken  to  do  it."  At  their 
death  the  principal,  or  what  remained  of  it,  was  to  be  divided 
among  certain  persons,  whom  he  designated,  as  follows :  "All 
my  nieces  and  nephews,  sons  and  daughters  of  Dowe,  sons  and 
daughters  of  William,  sons  and  daughters  of  Minard,  son  of 
Jane."  It  is  reasonable  to  hold  that  under  the  provision  made 
by  the  will  for  Dowe  and  Jane,  neither  of  whom  had  any  prop- 
erty, expenses  of  their  decent  burial,  if  borne  by  the  executor  or 
trustee,  would  be  allowable  credits  in  his  account.  He  paid  the 
expenses  of  the  burial  of  Jane.  It  cannot  be  doubted  that  the 
testator  contemplated  that  the  expenses  of  such  burial  should,  if 
necessary,  be  paid  out  of  the  residue.  It  seems  to  have  been 
necessary  for  the  executor  to  provide  for  Jane's  burial,  and  the 
amount  expended  for  the  purpose  appears  to  have  been  reasona- 
ble.    The  funeral  expenses  were  necessaries. 

To  consider  the  investments  made  by  the  executor.  One,  of 
$5,000,  was  on  mortgage  of  the  Voorhees  property,  a  farm  of  sev- 
enty-nine acres,  in  Hillsborough  township,  in  Somerset  county,  an(' 

A  son  is  not  liable  on  a  parol  promise  to  pay  an  undertaker  for  making  his 
mother's  coffin,  where  she  had  remarried,  and  at  the  time  of  her  death  was  liv- 
ing with  her  husband  ( Youngs  v.  Shough,  S  Green  27). 

Nor  is  a  pauper  under  obligation  to  borrow  the  money  necessary  to  bury 
his  child  {Reg.  v.  Vann,  15  Jur.  1090.     See  Kavanan^s  Oase,  1  Me.  226). 

A  step-father  was  allowed  the  funeral  expenses  of  his  step-son,  who  was  a 
lunatic,  out  of  his  lands  {Carter  v.  Beard,  10  Sim.  7). 

Even  where  a  wife  has  a  separate  estate,  her  husband  is  liable  for  her 
funeral  expenses  {Chappie  v.  Cooper,  13  M.  &  W.  259 ;  Patterson  v.  Patterson, 
59  N.  Y.  5S3;  Smyley  v.  Reese,  53  Ala.  89 ;  Sears  v.  Giddey,  41  Mich.  590 ; 
Weld  V.  Walker,  14  Am.  Law.  Rev.  57.  But  see  Gregory  v.  Loc.kyer,  6  Madd. 
90  ;  WHleter  v.  Dobie,  2  K.  &  J.  647;  McCord  v.  McKinley,  92  III.  11;  Mc- 
Cue  V.  Garvey,  U  Hm  562,  3  Red/.  313). 

Although  living  apart  {Jenkins  v.  Tucker,  1  H.  Bl.  90  ;  Ambrose  v.Kerrison, 
10  C.  B.  776;  Bradshaw  v.  Beard,  12  C.  B.  {N.  S.)  344;  Cunningham  v.  Rear- 
don,  98  Mass.  538). 


6  Stew.]  FEBRUARY  TERM,  1881.  527 

Wilson  V.  Staats. 

the  other,  of  $2,000,  was  on  a  second  mortgage  of  a  lot  in  Millstone, 
with  a  store,  dwelling-house  and  barn  thereon.  The  history 
of  the  investments  appears  to  be  as  follows  :  at  the  settlement 
of  his  first  account,  the  executor  had  in  hand  for  investment,  as 
the  residue  of  the  estate,  the  sum  of  $6,981.28.  The  settlement 
took  place  in  1864.  In  the  spring  of  1865,  he  lent  to  one 
Gabriel,  on  mortgage  of  his  farm,  $4,000,  and  afterwards,  in  the 
same  spring,  he  lent  $5,000  to  Abraham  Voorhees,  on  his  farm 
above  mentioned.  It  is  obvious  that  after  the  loan  to  Gabriel, 
he  had  not  $5,000  to  lend  to  Voorhees,  but  only  about  $3,000. 
In  order  to  make  the  loan  of  $5,000,  he  added  $600  of  his  own 
money  and  $1,400  of  the  money  of  hi'?  brother  John  to  the 
$3,000  of  the  estate.  Gabriel,  in  1869,  paid  off  his  mortgage, 
and  out  of  the  money  received  from  him,  the  executor  paid  his 
brother  John  his  $1,400  and  retained  his  own  $600.  The  bal- 
ance of  the  money,  $2,000,  he  invested  in  April  1869,  on  a 
second  mortgage  of  the  Wallace  property,  which  consisted,  as 
before  stated,  of  a  lot  (of  thirty-six  hundredths  of  acre)  in 
Millstone,  on  which  was  a  store-house,  dwelling-house,  and  barn, 
and  on  which  property  there  was  already  a  mortgage  for  $1,300. 
The  interest  was  regularly  paid  on  the  Voorhees  mortgage  up  to 
1876.  In  that  year  only  $200  of  the  interest  were  paid.  In 
1877  only  $50,  and  in  1878  $350  were  paid.  No  payment  was 
made  in  1879,  and  the  executor  then  proceeded  to  foreclose  the 

Whether  paying  funeral  expenses  renders  one  an  executor  de  son  tort  (see 
Camden  v.  Fletcher,  4  M.  &  W.  S7S;  Harrison  v.  Rowley,  4  Ves.  216;  Bennett 
V.  Ives,  SO  Conn.  S29  ;  Magner  v.  Ryan,  19  Mo.  196). 

A  direction  to  a  person  to  pay  the  expenses  of  a  last  illness  and  funeral  ex- 
penses, in  case  of  death,  out  of  a  particular  fund,  will  not  constitute  him  exec- 
utor according  to  the  tenor  {Toomey's  Case,  S  Sw.  &  Tr.  562).  Nor  a  direc- 
tion to  a  legatee  to  pay  such  expenses  out  of  his  legacy  (Smith's  Case,  10  Jur. 
(N.  S.)  1084). 

Administration  may  be  granted  to  one  who  has  supplied  funeral  expenses, 
as  a  creditor  {Fowler's  Case,  16  Jur.  S94;  Newcombe  v.  Bdoe,  L.  R.  {1  P.  & 
M.)  S14). 

If  the  estate  be  insolvent  the  usual  amount  allowed  is  £20  ( Yardley  v.  Ar- 
nold, Car.  &  M.  4S4) ;  and  £103  was  held  to  be  too  much  {Edwards  v.  Edwards, 
Z  Oromp.  &  M.  612) ;  the  amount  is  generally  discretionary  with  tlie  court  {Scott 
V.  Dorsey,  1  Harr.  &  Johns.  233). 


628  PKEROGATIVE  COUKT.  [33  Eq. 

Wilson  V.  Staats. 

mortgage.  At  the  sheriff's  sale  iiuder  foreclosure,  the  property- 
was  sold  for  $3,460.  It  was  not  bought  in.  The  Wallace 
property  was  sold  in  the  fall  of  1871,  under  foreclosure  proceed- 
ings instituted  the  previous  summer  by  the  executor  on  his  mort- 
gage, and  was  bought  in  by  him  for  the  estate,  for  $1,500,  subject 
to  the  first  mortgage.  He  held  it  until  the  winter  of  1879,  wlien 
he  sold  it  at  public  sale  to  Henry  McDonald,  for  $2,000. 

In  the  spring  of  the  year  in  the  summer  of  which  the  execu- 
tor began  the  foreclosure  suit  on  the  Wallace  mortgage,  Wal- 
lace made  an  assignment  for  the  equal  benefit  of  his  creditors. 
The  executor  did  not  put  in  his  claim  under  it.  The  claims  of 
the  creditors  who  did  so  were  compromised  by  the  assignees,  by 
the  payment  of  forty  cents  on  the  dollar.  ^ 

It  appears  that  Abraham  Voorhees  paid  for  the  Voorhees 
property  $8,482,  about  $108  an  acre.  The  time  when  he  pur- 
chased it  does  not  appear,  but  it  seems  to  have  been  about  the 
time  of  the  giving  of  the  mortgage.  If  its  value  was  then 
$8,428,  the  amount  lent  upon  it,  $5,000,  was  less  than  two-thirds 
of  the  value.  The  interest  was  paid  regularly  for  ten  years,  up 
to  1876.  In  that  year  $200  were  paid  for  interest;  the  next 
year  $50,  and  the  next  $350,  and  the  payment  of  interest  having 
ceased,  the  executor,  in  1879,  began  to  foreclose.  I  do  not  think 
that  he  is  answerable  for  the  loss  to  the  estate  on  that  loan.  The 
mortgage  was  taken  in  1865.     Between  that  time  and  1873  the 

The  cost  of  ordinary  mourning  apparel  for  the  family  of  the  decedent,  may 

be  sanctioned  { Campfield  v.  Ely,  1  Green  150  ;  Woodls  Estate,  1  Ashm.  SI4  ;  Pitt 
V.  Pitt,  2  Lee  508 ;  Paice  v.  Archbishop  of  Canterbury,  I4  Ves.  364  ;  Bridge  v. 
Brown,  2  Ymi.  &  CoU.  186 ;  Frederic  v.  Fredenc,  10  Mart.  188  ;  but  see  Gris- 
Kold  \.,  Chandler,  5  N.  H.  492;  Johnson  v.  Baker,  2  C  &  P.  207 ;  Maeknet  v. 
Macknet,  9  C.  E.  Gr.  296 ;  Holber^s  Smcession,  3  La.  Ann.  436 ;  Fiintham's 
Appeal,  11 S.  &  R.  16) ;  and  the  cost  of  a  wake  {McOne  v.  Garvey,  I4  Hun  562). 

The  expenses  of  a  tombstone  have  been  held  allowable  {2  Wms.  on  Exrs. 
969,  note;  Ferrin  v.  Myrick,  53  Barb.  76,  4I  N.  Y.  315;  Luckey's  Case,  4  Bed/. 
95;  but  see  Foley  v.  Buskway,  71  III.  386;  Morgan  v.  Morgan,  83  HI.  196; 
Lerch  v.  Emmett,  44  Ind.  331 ;  Erlacher'a  Case,  3  Bedf.  8 ;  Bridge  v.  Brown,  2 
You.  &  Coll.  185). 

The  expense  of  a  post  mortem  is  not  authorized  {Smith  v.  McLaughlin,  77  111. 
596)  ;  nor  moneys  spent  to  procure  the  arrest,  trial  and  pimishment  of 
decedent's  murderer  {I/usk  v.  Anderson,  1  Mete.  {Ky.)  4^6;  Jonea  v.  Beall,  19 


6  Stew.]  FEBRUARY  TERM,  1881.  529 


Wilson  V.  Staats. 


price  of  real  estate  rose.  In  the  latter  year  a  great  revulsion 
took  place,  and  it  fell  enormously.  Tli«?  executor  swears  that 
when  the  mortgage  was  taken  he  considered  that  the  property, 
without  the  buildings  (it  is  said  that  such  a  house  as  that  on  the 
farm  would  now  cost  $4,000),  was  worth  the  amount  of  the 
mortgage.  He  contributed  of  his  own  funds  $600  to  the  loan. 
His  brother  John,  who  contributed  $1,400,  as  before  stated, 
testifies  that  he  considered  the  property  worth  $100  an  acre  at 
the  time  the  loan  was  made.  No  witness  is  produced  to  say  that 
the  property  was  not  a  good  security  when  the  mortgage  was 
taken,  and  I  am  left  to  conclude  that  the  security  was  abundant 
when  the  loan  was  made,  and  that  the  loss  sustained  is  due  to 
the  depreciation  which  attended  the  great  revulsion  before  referred 
to.  One  of  the  witnesses,  John  W.  Smock,  says  that  if  the 
property  had  been  kept  in  good  repair,  he  would  not  consider  it 
worth  now  more  than  half  what  it  would  have  brought  eight  or 
ten  years  ago. 

The  Wallace  property  was  of  a  different  character.  It  was  a 
valuable  village  property.  It  is  said  to  have  been  the  best  stand 
for  business  on  that  side  of  the  river.  Rynear  S.  Merrell  testi- 
fies that  when  the  executor  obtained  his  mortgage  on  it,  he  (Mer- 
rell) thought  it  a  good  security  for  that  loan,  and  he  also  says  it 
had  been  sold  for  over  $4,000.  The  executor  testifies  that  when 
he  made  the  loan  he  knew  the  property  had  been  sold  for  $4,300 

Oa.  171.  See  Killebrew  v.  Murphy,  3  Heisk.  546  ;  Harrell  v.  Davenport,  5  Jones 
Eq.  4) ;  nor  for  feasts  or  ornaments  {Shelley's  Case,  1  Salk.  296 ;  Toller's  Err. 
246)  ;  nor  for  writing  funeral  notices  and  procuring  a  clergyman  to  officiate 
(Hewett  V.  Bronson,  5  Daly  1) ;  nor  for  the  use  of  plaintiff's  house  during  the 
funeral  ceremonies  {Ibid).    Litiell's  Case,  IIS.  N.  J.  Frerog.  Ct.,  Oct.,  1876. 

Decedent's  lands  may  be  sold  to  pay  his  funeral  expenses  ( Walker  v.  Diehl, 
79  111.  473;  Clayton  v.  Somers,  12  C.  E.  Gr.  230;  Owem  v.  Bloom,  U  Hun  296. 
See  Carter  v.  Beard,  10  Sim.  7). 

If  sued  by  an  administrator  for  a  debt  of  his  intestate,  the  defendant  may 
ofiset  a  demand  for  money  paid  by  him  for  intestate's  funeral  {Adams  v.  Butts, 
16  Pick.  343  ;  Patterson  v.  Patteison,  59  N.  Y.  574.  See  Harte  v.  Houchin,  50 
Ind.  327). 

Counts  for  funeral  expenses  cannot  be  joined  with  counts  on  promises  made 
to  the  testator  in  his  lifetime  {Myer  v.  Cole,  12  Johns.  349;  Demott  v.  Field,  7 
Cmo.  68.  Se^  further,  10  Cent.  L.  J.  303,  325).— Bep. 

34 


530  PREROGATIVE  COURT.  [33  Eq. 

"Wilson  V.  Staats. 

just  before  the  mortgage  was  given,  which  was  in  1864.  He 
got  the  mortgage  by  assignment  in  1869.  The  interest  on  tiie 
first  mortgage,  which  was  for  $1,300,  was  paid  up  until  the  year 
before  the  executor  foreclosed  his  mortgage.  It  is  said  that  be- 
tween the  time  when  the  $2,000  mortgage  was  given  and  the 
time  when  the  executor  took  liis  assignment  of  it,  property  in 
Millstone  rose  in  value ;  but  if  it  did,  it  does  not  appear  how 
much.  Both  mortgages  on  the  property  were  purchase-money 
mortgages.  I  have  no  doubt  the  executor  regarded  this  as  a 
proper  investment  when  it  was  made,  notwithstanding  it  was  a 
second  mortgage,  but  I  am  constrained  to  the  conviction  that  it 
was  not.  The  two  mortgages  together  amounted  to  almost  four- 
fifths  of  the  value  of  the  property,  judging  by  the  price  it 
brought  in  1866,  and  if  it  appreciated  at  all  between  that  time 
and  1869,  when  the  executor  took  the  assignment,  it  does  not 
appear  by  any  evidence  that  it  appreciated  enough  to  make  the 
loan  on  the  second  mortgage  a  safe  one ;  and  there  is  indeed  no 
evidence  that  it  appreciated  at  all.  Nor  will  the  executor's  alle- 
gation that  he  could  not  find  a  better  security  avail  to  discharge 
him  from  responsibility.  It  does  not  appear  that  he  tried  to 
find  any  after  the  money  was  paid  in  by  Gabriel.  Though  he 
says,  in  the  beginning  of  his  testimony,  that  he  could  get  no 
place  to  invest  the  money  on  first  mortgage  for  some  time,  sub- 
sequently he  says  he  had  the  money  on  hand  about  a  week 
before  he  invested  it  in  the  Wallace  mortgage,  and  he  adds  that 
he  had  promised  the  money  to  Beardsley,  who  assigned  the 
mortgage  to  him.  He  says  Gabriel  paid  him  the  money  in 
April.  It  must  have  been  the  1st  of  that  month,  for  the  assign.- 
ment  from  Beardsley  to  the  executor  is  dated  the  2d  of  April. 
Again,  the  executor  did  not  discharge  his  duty  to  the  estate  in 
regard  to  the  claim  which  the  personal  responsibility  of  Wallace 
on  the  bond  enabled  him  to  make  on  the  property  of  Wallace 
not  covered  by  the  mortgage.  He  says  he  did  not  put  in  his 
claim  against  Wallace's  estate  in  the  hands  of  the  assignees,  be- 
cause he  held  a  mortgage.  If  the  mortgaged  premises  were 
worth  the  amount  of  the  mortgage  at  that  time,  he  should  have 
got  the  money  for  his  mortgage.     Mr.  Smock,  one  of  the  assign- 


6  Stew.]  FEBRUARY  TERM,  1881.  531 

Wilson  V.  Staats. 

ees  of  Wallace,  says  he  offered  $3,500  for  the  property  then,  and 
he  considered  it  worth  about  $4,000.  At  the  same  time,  he  says 
the  assignees  offered  it  for  sale,  and  could  get  no  offer  or  bid  f  >v 
it.  He  appears  to  have  been  in  the  occupation  of  the  property 
at  the  time  as  a  tenant,  and  perhaps  was  therefore  willing  to  buy 
it.  It  may  be  added  that  it  does  not  appear  that  the  property 
was  then — in  the  spring  of  1871,  before  the  financial  panic 
occurred — worth  more  than  $4,000.  Elmendorf,  tiie  other  as- 
signee of  Wallace,  says  Smock  was  anxious  to  buy,  and  that  he 
(Elmendorf)  thought  the  price  Smock  offered  (which  was  $3,500) 
was  the  full  value  of  the  property.  But  further,  the  executor 
might  have  put  in  his  claim  under  the  assignment,  and  if  he  had 
done  so  he  would  have  been  entitled  to  a  dividend  on  the  amount 
of  any  deficiency  left  after  applying  the  proceeils  of  the  sale  of 
the  mortgaged  premises  to  the  payment  of  his  debt.  Bell  v. 
Fleming^s  Exrs.,  1  Beas.  13.  His  omission  to  do  so  was  a  dere- 
liction of  duty.  As  before  stated,  the  estate  paid,  on  compro- 
mise, forty  per  cent.  The  executor  should  be  held  responsible 
for  the  loss  on  this  loan,  and  therefore  all  his  claims  for  allow- 
ance in  respect  to  the  property  after  it  was  bought  in  by  him 
must  be  disallowed,  and  of  course  the  charges  against  him  for 
rents  received  from  it  will  be  stricken  from  the  other  side  of  the 
account.  I  have  no  doubt  he  acted  honestly  in  the  matter  of 
this  loan,  but  he  not  only  took  a  second  mortgage  for  security, 
but  he  did  not  observe  the  rule  by  which  prudent  business  men 
are  governed  in  their  investments  of  their  own  money  on  mort- 
gage of  real  estate,  not  to  lend  to  the  extent  of  more  than  two- 
thirds  of  the  value  of  the  property.  I  am  constrained,  there- 
fore, to  visit  the  loss  on  him  rather  than  on  the  estate. 

While  this  conclusion  renders  it  unnecessary  to  pass  on  the 
question  raised  as  to  whether  the  executor,  if  that  property  was 
the  property  of  the  estate  when  he  sold  it,  was  not  bound  to  ad- 
vertise it  according  to  the  directions  of  the  act  "  relative  to  sales 
of  land  under  a  public  statute  or  by  virtue  of  any  judicial  pro- 
ceedings" {Rev.  104,0),  it  may  be  remarked  that  the  sale  was 
not  within  the  provisions  of  that  act. 

The  executor  has  not,  I  am  satisfied,  been  guilty  of  any  inten- 
tional wrons:  or  misconduct  in  the  discharge  of  the  duties  of  his 


532  PREROGATIVE  COURT.  [33  Eq. 

Youmans  v.  Petty. 

office,  ami  he  ought  not,  therefore,  to  be  deprived  of  his  com- 
missions. The  commissions  will  be  computed  according  to  the 
rule  laid  down  on  the  subject  in  Tmker  v.  Tucker,  6  Steiv.  Eq.  235  ; 
that  is,  he  is  entitled  to  commissions  on  the  amount  on  which  he 
is  to  be  allowed  commissious  in  the  third  or  final  account  at  the 
same  rate  at  which  they  would  have  been  allowed  had  the  money 
on  which  they  are  computed  constituted  part  of  those  accounted 
for  in  the  former  accounts.  He  is  to  be  allowed  commissions 
only  once  on  the  entire  estate,  notwithstanding  the  several  ac- 
countings, and  that  only  at  the  statutory  rate,  taking  all  the 
sums  on  which  commissions  are  computed  together,  and  apply- 
ing the  statute  thereto  accordingly. 

The  decree  of  the  orphans  court  will  be   reversed  in  the 
respects  above  indicated,  but  without  costs. 


Hannah  Youmans  et  al.,  appellants, 

V, 

Luther  Y.  Petty,  respondent. 

Where  a  contest  over  the  probate  of  a  will  has  been  duly  certified  into  the 
circuit  court,  and  the  proceedings  there  appear  to  have  been  regular,  and  the 
verdict  of  the  jury  properly  certified  into  the  orphans  court,  and  a  decree  in 
conformity  with  the  verdict  entered,  objections  addressed  to  the  discretion  of 
the  circuit  judge  and  overruled  by  him,  or  objections  which,  if  raised  at  all, 
ought  to  have  been  raised  in  the  circuit,  are  no  ground  for  reversing  the  decree 
of  the  orphans  court. 

On  appeal  from  a  decree  of  the  orphans  court  of  Warren 
county  refusing  probate  of  a  paper  writing  purporting  to  be  the 
will  of  John  M.  Youmans,  deceased. 

Mr.  J.  F.  Dumont  and  Mr.  H.  S.  Harris,  for  appellants. 

Mr.  J.  G.  Shipnujn,  for  respondent. 


6  Stew.]  FEBRUARY  TERM,  1881.  533 

Youmans  v.  Petty. 

The  Ordinary. 

The  appeal  is  from  the  decree  of  the  orphans  court  of  Warren 
county,  refusing  to  admit  to  probate  a  paper  writing  purporting 
to  be  the  last  will  and  testament  of  John  M.  Youmans,  deceased. 
The  appeal  is  from  the  whole  of  the  decree  except  so  much  as 
awards  costs  and  counsel  fees,  and  the  ground  of  appeal  is  that 
the  decree  is,  with  the  exception  before  mentioned,  erroneous  in 
every  part,  because  the  circuit  court  of  Warren  county  should 
have  decided  that  the  paper  is  the  will  of  John  M.  Youmans, 
deceased,  and  should  be  admitted  to  probate  accordingly.  It  will 
be  perceived  that  the  objection  is  to  the  result  of  the  litigation 
in  the  circuit  court,  into  which,  for  trial  before  a  jury,  the  ques- 
tion involved  in  the  controversy  over  the  instrument  was  certi- 
fied by  the  orphans  court,  on  application  in  behalf  of  the  caveator. 
By  the  record,  the  question  appears  to  have  been  duly  certified 
into  the  circuit  court,  and  the  issue  there  appears  to  have  been 
duly  framed,  and  the  cause  duly  tried.  The  verdict  of  the  jury 
was  certified  to  the  orphans  court,  and  the  circuit  judge  certified, 
also,  that  there  was  no  request  that  the  testimony  or  charge  be  re- 
duced to  writing ;  that  no  exception  was  taken,  either  to  the  rulings 
of  the  court  or  the  charge,  and  that  there  was  a  motion  on  behalf  of  the 
proponents  for  a  new  trial,  and  a  motion  that  the  cause  be  certified 
thereon  into  the  supreme  court,  both  of  which  were  denied.  They 
were  both  in  the  discretion  of  the  circuit  judge.  I  am  unable  to  find 
any  error  in  the  decree  complained  of.  The  act  [Rev.  756 
§§  19,  20)  authorizes  the  orphans  court,  on  application  of  either 
party  to  a  contest  over  a  will,  to  certify  the  questions  involved 
into  the  circuit  court  of  the  county,  for  trial  before  a  jury,  and  it 
provides  that  the  verdict  shall  be  subject  to  be  set  aside,  and  a 
new  trial  granted  in  the  circuit  court,  as  in  other  cases  in  that 
court,  and  that  the  circuit  judge  may,  on  the  application  for  a 
new  trial,  certify  the  application  to  the  supreme  court  for  its 
advisory  opinion.  It  also  provides  that  on  the  certificate  of  the 
circuit  judge  the  orphans  court  shall  proceed  to  make  a  decree 
touching  the  probate  of  the  will,  in  accordance  with  the  finding 
of  the  issue  in  the  circuit  court.  There  does  not  appear  to  have 
been  any  objection  in  the  orphans  court  to  the  making  of  the 


634  PREROGATIVE  COURT.  [33  Eq. 

Schaedel  v.  Eeibolt. 

decree  in  accordance  with  the  finding  of  the  circuit  court.  And 
though  there  was  objection  to  the  action  of  the  court  in  certify- 
ing the  question  into  the  circuit  court,  the  order  that  the  question 
be  certified  was  not  appealed  from,  and  it  may  not  be  out  of  place 
to  remark  that  if  it  had  been,  there  appears  to  have  been  no  error 
in  the  exercise  of  the  discretion  which  the  act  gives  to  the 
orphans  court  in  the  matter.  The  decree  will  be  affirmed,  with 
costs. 


Philip  Schaedel,  guardian,  appellant. 


Henry  Reibolt,  administrator,  respondent. 

Where  appellant  took  into  his  own  family  an  orphan,  and  educated  and  sup- 
ported her  until  she  was  sixteen  years  old,  when  she  went  elsewhere  to  work, 
and  received  her  own  earnings  for  a  time,  but  becoming  sick  she  returned — 
ffeld,  that  appellant  was  entitled  to  recover  from  her  estate  the  expenses  of 
her  last  illness  and  funeral.    Aliter,  as  to  clotliing  and  board  furnished. 


Appeal  from  decree  of  Essex  orphans  court. 
Mr.  S.  Morrow,  for  appellant. 
Mr.  E.  Q.  Keasbey,  for  respondent. 

The  Ordinary. 

The  appellant,  Philip  Schaedel,  and  his  wife,  took  the  deceased 
ward,  Augusta  Reibolt,  out  of  the  Newark  Orphan  Asylum, 
where  she  had  been  placed  for  support  at  the  hands  of  charity. 
She  was  then  about  seven  years  old.  They  appear  to  have  taken 
her  to  bring  up,  and  they  seem  to  have  reared  and  cared  for  her, 
not  only  up  to  the  time  when,  at  the  age  of  about  sixteen,  she 
left  their  house  to  go  out  to  service,  but  afterwards,  whenever  she 
returned  to  them,  and  during  her  long,  last  illness  (which  was 


6  Steay.]  FEBRUARY  TERM,  1881.  535 

Schaedel  v.  Eeibolt. 

for  many  months),  as  tenderly  as  they  would  had  she  been  their 
own  child.  She  went  to  service  of  her  own  choice,  and  while  at 
service  regarded  their  house  as  her  home,  and  returned  to  it  from 
time  to  time  accordingly.  They  swear  that  she  received  and  kept 
for  her  own  use  all  the  wages  which  she  earned.  She  learned 
the  trade  of  dressmaking  in  Newark,  while  she  lived  with  them. 
While  she  was  living  with  them,  and  before  she  went  out  to  ser- 
vice, she  was  entitled  to  some  money  from  her  grandfather's 
estate.  That  money  was  in  the  hands  of  Henry  Sauerbier  as 
her  guardian,  he  having  been  duly  appointed  as  such.  While 
she  was  at  service  in  Paterson,  she  became  apprehensive  lest  she 
should  lose  her  money  through  the  insolvency  of  Sauerbier,  and 
procured  the  appointment  of  Schaedel  as  her  guardian,  and  he 
collected  the  money  from  Sauerbier.  Early  in  the  fall  of  1877, 
she  returned  to  Schaedel's  house  sick  of  pulmonary  consumption, 
and  stayed  there  until  she  died,  on  the  18th  of  March  following. 
Schaedel  provided  for  her  well  during  her  illness,  and  had  her 
decently  buried  after  death.  He  claims  credit  in  his  account  of 
his  guardianship  for  payments  made  for  her  in  the  changing  of 
guardians,  for  money  paid  for  collecting  the  money  from  Sauer- 
bier, compensation  for  her  board  &c,,  including  care  and  attend- 
ance and  physician's  bills  in  her  illness,  and  for  money  paid  for 
her  funeral  expenses,  to  an  amount  in  the  aggregate  very  con- 
siderably exceeding  the  money  received  by  him  for  her  as  her 
guardian,  and  the  interest  thereon.  Her  administrator,  her 
brother,  excepted  to  all  these  credits,  and  they  were  all  disallowed. 
He  insists  that  Schaedel  was  bound  to  furnish  the  board,  care 
and  atteudance,  and  medical  aid  for  which  he  claims  credit 
witiiout  compensation  or  re-imbursement  therefor ;  and  so,  too,  as 
to  the  expenses  of  her  funeral,  that  he  was  bound  to  pay  them, 
and  that  he  has  no  claim  against  her  estate  on  account  of  those 
matters,  or  any  of  them. 

The  proof  is,  as  before  stated,  that  the  appellant  and  his 
wife  did  their  whole  duty  towards  Augusta,  and  cared  for 
her  as  if  she  had  been  their  own  child,  from  the  time  when 
they  took  her  from  the  orphan  asylum  until  her  death.  They 
sent  her,  not  only  to  the  public  school,  but  for  three  years, 
at  Sclinedol's  expense,  to  a  private  school  ;  and  they  not  onlj 


536  PKEROGATIVE  COURT.  [33  Eq. 

Schaedel  v.  Reibolt. 

educated  her  in  the  ordinary  branches,  but  employed  teachers  to 
instruct  her  in  book-keeping  and  in  music.  She  went  to  school 
till  she  was  fourteen  years  old.  For  the  last  three  years  of  the 
time  she  went  to  a  private  school.  After  she  became  fourteen 
years  old,  she,  as  before  mentioned,  learned  the  business  of  dress- 
making, but  lived  with  them  all  the  time,  and  they  clothed  her. 
She  appears  to  have  left  their  house  of  her  own  accord  when 
she  was  about  sixteen  years  old,  to  work  for  herself,  and  continued 
to  work  on  her  own  account,  at  various  places  in  the  neighbor- 
hood of  Newark,  until  early  in  the  fall  of  1877,  when  Mrs. 
Schaedel  dissuaded  her  from  going  out  any  more,  because  of  her 
failing  health,  and  she  thenceforward,  until  her  death,  which 
occurred  in  March,  1878,  lived  with  them,  but  as  before  stated, 
was  sick  of  consumption.  The  proof  is  that  she  kept  her  own 
wages,  and  spent  them  in  clothes  &c.  Miss  Cullman,  indeed, 
swears  that  on  one  occasion  she  saw  her  pay  $12  to  the  appel- 
lant's wife,  which  the  witness  says  she  had  brought  from  a  place 
in  Broad  street  (she  was  at  one  time  employed  at  service  at  ]\Ir. 
Lockwood's  house  in  that  street),  but  this  is  positively  denied  by 
Mrs.  Schaedel,  and  both  she  and  her  husband  swear  unqualifiedly 
that  they  never  had  any  of  her  earnings.  Her  brother's  testi- 
mony as  to  what  he  says  Augusta  told  him  on  the  subject  is,  of 
course,  incompetent.  Miss  Cullman  says  Augusta  began  to  be 
ill  in  August  or  September,  1877,  but  adds  that  she  was  fre- 
quently sick  before  that  time  and  had  a  doctor.  It  appears  quite 
clear  that  the  quasi  parental  relation  which  before  then  had 
existed  between  Augusta  and  Schaedel  terminated  when  she,  of 
her  own  accord,  went  out  to  work  for  herself,  and  the  fact  that 
she  regarded  his  house  as  her  home,  and  returned  to  it  as  such 
in  the  intervals  of  employment,  would  not  affect  that  conclusion. 
For  the  time  that  she  was  a  member  of  his  family  previously, 
he  could  have  no  claim  against  her  for  necessaries  furnished  to 
her,  nor  she  any  against  him  for  her  services  rendered  in  the 
family.  Haggerty  v.  McCanna,  10  C.  E.  Gr.  IfB.  And  so,  too, 
to  a  certain  extent  with  regard  to  the  same  matters  when  she 
returned  from  time  to  time  to  his  house  as  her  house.  It  appears, 
it  should  be  remarked,  that  she  stayed  at  his  house  during  such 


6  Stew.]  FEBRUARY  TERM,  1881.  537 

Merrill  v.  Kush. 

intervals  of  employment  for  considerable  periods,  at  one  time  all 
winter,  and  at  another  (in  1877)  from  April  to  August.  Her 
board  (and  clothing,  too,  if  he  provided  it  on  such  visits  or  stays) 
he  would  be  regarded  as  giving  to  her,  in  view  of  their  relations, 
unless  it  was  otherwise  understood  between  them.  But  neither 
justice  nor  law  required  him,  under  the  circumstances,  to  pay 
her  physician's  and  nurse's  bills  duriug  her  long  illness,  which 
resulted  in  her  death,  and  finally  to  bury  her  at  his  own  expense  ; 
and  neither  justice  nor  law  forbids  his  being  indemnified  for  those 
payments  out  of  her  estate,  but,  on  the  other  hand,  both  require 
the  contrary.  The  appellant  should  be  allowed  all  his  charges 
except  that  of  $667.50  (made,  he  swears,  by  advice  of  counsel), 
under  date  of  April  30th,  1876,  which  is  for  board  and  clothing 
of  Augusta  from  October  1st,  1867,  to  April  30th,  1876,  and 
the  charge  of  $40  under  date  of  July  15th,  1876,  for  her  board 
and  washing  during  her  sickness  from  May  1st,  1876,  to  July 
15th,  1876.  The  court  below  appears  to  have  ordered  him  to 
pay  out  of  his  own  pocket  a  counsel  fee  of  $25  to  the  exceptant's 
counsel,  and  the  costs  of  the  trial  of  the  exceptions,  and  the  costs 
of  settling  the  account.  Those  ought  all  to  be  paid  out  of  the 
estate. 

The  decree  of  the  orphans  court  will  be  reversed,  and  the 
account  restated  here  in  accordance  with  the  views  expressed  in 
this  opinion. 


RosEAiTNA  Merrill,  appellant, 

V. 

WrLLLA.M  J.  Rush,  executor,  respondent. 

The  testamentary  capacity  of  a  testatrix  eighty-three  years  of  age  when  her 
will  was  executed,  who  mentioned  twenty  of  her  intended  legatees  to  her  scriv- 
ener, and  noted  the  omission  of  one  of  them  when  he  read  the  will  over  to  her, 
supported  by  the  testimony  of  the  surviving  attesting  witness  and  scrivener  of 
her  will,  and  by  her  physician  and  other  witnesses,  established,  although  her 


538  PREROGATIVE  COURT.  [33  Eq. 


Merrill  v.  Rush. 


forgetfulness  in  regard  to  some  minor  matters  was  shown,  and  it  appeared  that 
she  had  made  an  unjust  and  unfounded  accusation  against  a  person  who,  how- 
ever, had  no  natural  claims  upon  her  bounty. 


Appeal   from    the   decree   of  the  orphans  court  of  Warren 
county,  admitting  to  probate  the  will  of  Rachel  Rush,  deceased. 

Mr.  Henry  S.  Harris,  for  appellant. 

Mr.  L.  De  Witt  Taylor,  for  respondent. 

The  Oedinary. 

The  appeal  brings  up  for  consideration  the  question  whether  a 
paper  purporting  to  be  the  last  will  of  Rachel  Rush,  deceased, 
late  of  the  county  of  Warren,  and  executed  by  her  as  such,  shall 
be  admitted  to  probate.  The  testatrix,  at  the  time  of  her  death, 
October  8th,  1878,  was  of  very  advanced  age,  being  a  little  over 
ninety.  When  the  will  was  made  she  was  over  eighty-three 
years  of  age.  It  was  made,  then,  about  seven  years  before  she 
died.  By  it,  after  ordering  the  payment  of  all  her  just  debts 
and  funeral  expenses,  she  gave  to  certain  of  her  grandchildren, 
by  name,  $50  each ;  to  Rachel  Rush,  daughter  of  her  son,  Peter 
J.  Rush,  her  feather  bed  and  bedding  and  $50 ;  to  the  daughters 
of  her  deceased  daughter  Margaret,  $50,  to  be  divided  among 
them  equally ;  to  the  Baptist  church  of  Montana,  Warren 
county,  S50 ;  to  her  six  daughters-in-law,  $100  each,  and  to  her 
two  daughters  and  six  sons  the  residue  of  her  property ;  and  she 
appointed  her  son,  William  J.  Rush,  executor.  Of  the  testa- 
mentary witnesses,  only  one,  James  Vliet,  is  living.  He  drew 
the  will.  It  is  dated  January  11th,  1871,  and  was  executed  on 
the  day,  or  the  day  after,  it  bears  date ;  probably  the  former. 

Mr.  Vliet  had  drawn  two  wills  previously  to  this  for  her,  and 
he  drew  this  at  her  request.  She  appears  to  have  sent  for  him 
to  get  him  to  draw  it,  and  he  went  to  her  place  of  residence  at  the 
house  of  her  son,  Peter  J.  Rush,  where  she  had  lived  for 
many  years.     She  told  him  that  she  wanted  to  make  some  alter- 


6  Stew.]  FEBRUARY  TERM,  1881.  539 

Merrill  v.  Eush. 

ations  in  her  will,  and  he  made  a  note,  at  the  time  of  the  altera- 
tions, which  she  wished  to  make.  He  drew  the  will  accordingly, 
and  returned  with  the  paper  to  the  same  house  the  next  day. 
"When  he  arrived  there  he  and  she  retired  to  a  separate  room,  and 
he  then  read  the  will  to  her.  As  he  read  it  she  perceived  that 
he  had  omitted  one  of  the  persons  to  whom  she  desired  to  make 
a  bequest — Mary  M.  Beers,  daughter  of  her  daughter  Maria — 
and  remarked  that  he  had  left  her  out.  He  thereupon  made  the 
correction,  by  interlineation,  and  finished  reading  the  will  to  her, 
and  she  pronounced  it  to  be  right.  At  his  first  call  upon  her, 
she  spoke  to  him  about  procuring  a  witness,  and  it  was  under- 
stood between  them  that  he  would  see  Martin  H.  Tinsmau,  and 
bring  him  with  him  to  witness  the  execution  of  the  will  with 
him.  He  brought  Tinsman  accordingly,  and  the  latter,  with  Mr. 
Vliet,  witnessed  the  execution  of  the  will  by  her.  As  before 
stated,  Tinsman  is  dead.  The  will  was  executed  with  all  due 
legal  formalities.     The  attestation  clause  is  as  follows  : 

"  Signed,  sealed,  published  and  declared  by  the  above-named  Eachel  Rush, 
to  be  her  last  will  and  testament,  in  the  presence  of  us,  who  were  present  at 
the  same  time,  and  subscribed  our  names  as  witnesses  in  the  presence  of  the 
testator  and  each  other." 

The  attestation  clause  is  perfect,  and  it  may  be  added  that  the 
proof  aliunde  establishes  all  the  requisites  of  the  statute.  After 
the  will  was  executed,  Mr.  Vliet  inquired  of  the  testatrix  what 
directions  she  would  give  as  to  the  custody  of  the  paper.  She 
said  she  desired  him  to  retain  it,  and  he  did  so,  from  that  time 
up  to  a  few  days  after  her  death.  He  was  well  acquainted 
with  her.  As  before  stated,  he  had  drawn  two  previous  wills 
for  her.  One  was  executed  in  March  and  the  other  in  June, 
1868,  and  he  had  had  the  custody  of  them.  They  remained  in 
his  custody  after  cancellation,  and  appear  to  be  there  still.  He 
testifies  that  the  will  was  drawn  in  conformity  to  her  directions, 
and  that  at  the  time  of  the  execution  of  the  paper  she  was  of 
sound  and  disposing  mind,  memory  and  understanding.  There 
is  no  proof  whatever  of  the  exercise  of  undue  influence  over  her 
in  the  making  of  the  will.     Its  admission  to  probate  is  resisted, 


640  PEEROGATIVE  COURT.  [33  Eq. 

Merrill  v.  Rush. 

on  the  ground  that  when  it  was  made  she  had  not  testamentary 
capacity.  In  the  will  she  makes  bequests  to  more  than  twenty 
of  her  grandchildren,  making  mention  of  them  by  name  in  every 
instance  but  one  (the  daughter  of  her  daughter  Margaret),  with 
correct  reference  to  their  parentage.  She  mentions  each  of  her 
daughters-in-law,  and  makes  a  bequest  to  each,  and  then  gives 
to  her  daughters  and  sons  the  entire  residue  of  her  property. 
She  gave  to  Mr.  Vliet  the  instructions  for  that  will,  as  before  stated, 
and  he  testifies  that  no  one  except  him  and  her  was  present  at 
the  time.  It  is  urged,  on  behalf  of  the  caveatrix,  that  the  tes- 
tatrix was  under  delusions  in  i-egard  to  an  injury  done  to  a  horse 
belonging  to  her,  from  which  it  died,  and  also  as  to  certain  small 
articles  of  household  furniture  of  little  value,  which  she  alleged 
had  been  stolen  from  her.  The  injury  referred  to  she  imputed 
to  Charles  B.  Rush,  and  the  theft  to  his  wife.  She  lived  with 
them  from  the  death  of  her  husband,  which  occurred  in  the  fall 
of  1867,  until  the  spring  of  1868.  The  horse  was  with  her 
there.  She  appears  to  have  been  very  much  attached  to  it. 
"While  she  was  there  she  cliarged  Rush  with  having  unduly 
worked  it,  and  there  were  unpleasant,  not  to  say  unfriendly, 
words  between  them  on  the  subject.  The  horse  was  not  injured, 
and  did  not  die  at  his  place,  but  at  her  son's,  where  she  lived  at 
the  time.  Her  suspicion  or  belief  that  Rush  had  maliciously 
done  the  injury  which  resulted  in  the  death  of  the  horse  was 
unjust  to  him,  but  it  evidently  arose  from  her  state  of  feeling 
towards  him  in  connection  with  the  difficulty  before  referred  to, 
which  had  occurred  between  them  in  respect  to  the  horse.  As  to 
the  household  articles  which  she  charged  his  wife  with  having 
stolen,  the  latter  testifies  that  some  of  them  were  given  to  her  by 
the  testatrix,  and  it  appears  that  as  to  the  others,  certain  dishes, 
the  testatrix  had  given  them  to  her  daughters,  and  had  probably 
forgotten  the  fact.  The  hallucinations,  if  such  they  may  be 
called,  had  no  reference,  however,  to  any  person  who  had  reason 
to  expect  to  be  a  recipient  of  her  bounty,  or  who  had  any  claims 
by  nature  upon  her  in  her  distribution  of  her  estate.  There  is 
no  evidence  that  they  in  anywise  affected  her  testamentary  dispo- 
sition of  her  property,  and   if  there  were  evidence  that  it  had 


6  Stew.]  FEBRUARY  TERM,  1881.  541 

Merrill  v.  Rush. 

done  so,  probate  of  the  will  would  not  be  denied  on  that  account 
where  the  denial  would  not  avail  those  who,  but  for  the  delusion, 
would  have  been  recipients  of  the  testator's  bounty.  Stackhouse 
V.  Horton,  2  McCart.  W2.  Her  conviction  as  to  the  cause  of 
the  death  of  the  horse  was  the  offspring  of  the  ill  opinion  which 
she  had  of  Charles  B.  Rush.  In  the  charge  made  against  his  wife 
in  respect  to  the  dishes,  there  is  evidence  of  failing  memory. 

It  appears,  however,  affirmatively,  in  respect  to  both  these 
charges,  that  she  readily  yielded  to  the  considerations  which 
would  convince  a  sane  mind.  Asa  Kinney,  a  witness  sworn 
on  behalf  of  the  caveatrix,  says  that  after  he  told  her  she  could 
not  punish  Rush  for  the  injury  to  the  horse,  because  she  could 
not  prove  that  he  was  on  the  ground  when  the  injury  was  done, 
she  gave  the  matter  up.  She  seems,  also,  to  have  accepted  the 
statement  of  her  daughter  that  the  dishes  had  been  given  by  her 
to  her  daughters.  It  is  charged,  also,  that  the  condition  of  her 
mental  and  bodily  health  was  such,  while  she  was  living  with 
Charles  B.  Rush,  from  the  fall  of  1867  to  the  spring  of  1868,  as 
to  indicate  testamentary  incapacity,  but  the  circumstances  adduced 
are  evidence  only  of  the  failure  of  memory  in  reference  to  recent 
matters,  incident  to  old  age,  and  a  disregard  of  the  proprieties  of 
life  with  respect  to  cleanliness.  As  to  this  latter  circumstance, 
the  proof  depends  wholly  on  the  testimony  of  Rush  and  his  wife. 
She  lived  with  them,  as  before  stated,  from  the  fall  of  1867  to 
the  spring  of  1868.  She  lived  nearly  ten  years  after  she  left 
their  house.  She  lived  at  three  different  places  afterwards.  If 
her  mind  was  so  far  gone  when  she  lived  at  Charles  B.  Rush's 
as  that  she  had,  by  reason  of  want  of  mental  capacity,  no  regard 
for  the  decencies  of  life  (for  what  is  charged  upon  her  is  said  not 
to  have  been  done  through  or  when  she  was  in  a  state  of  illness), 
it  is  remarkable  that  the  like  evidence  of  insanity  was  not  found 
in  her  conduct  afterwards.  It  is  reasonable  to  suppose  that  Dr. 
Hulshizer  and  Mrs.  Fangboner,  of  whom  more  particular  men- 
tion will  be  made  hereafter,  should  not  have  known  of  any  such 
evidence  of  incompetency.  The  opinions  of  witnesses  other  than 
the  testamentary  witnesses  or  experts,  are  not  competent  on  the 
subject  of  capacity.     The  testimony  of  Mr.  Vliet  has  already 


542  PREROGATIVE  COURT.  [33  Eq. 

•  •  Merrill  v.  Rush. 

been  adverted  to.  Dr.  Hulshizer  speaks  of  the  testatrix,  during 
the  last  few  years  of  her  life,  from  a  period  prior  to  the  year 
1872.  As  before  stated,  the  will  was  made  in  January,  1871. 
He  testifies  that  he  attended  her  at  different  times  from  a  period 
probably  shortly  before  1872  to  her  death,  but  that  she  did  not 
require  any  particular  attention  from  a  physician ;  that  the  con- 
dition of  her  health  during  the  time  that  he  knew  her  was  go(xl ; 
that  he  talked  to  her  several  times,  and  took  pleasure  in  talking 
to  her,  on  account  of  her  age.  He  says  that  he  never  saw  any- 
thing that  would  lead  him  to  question  her  competency ;  that  in 
the  conversations  that  he  had  with  her,  she  would  be  very  explicit 
in  recounting  to  him  the  occurrences  of  her  past  life;  that  from 
what  she  would  tell  him  on  those  occasions,  he  thought  her  mind 
was  remarkable ;  that  she  always  recognized  him,  and  that  prior 
to  the  last  two  or  three  years  of  her  life,  he  never  saw  anything 
that  led  him  to  believe  that  she  was  not  of  sound  mind.  Mrs. 
Fangboner,  who  knew  the  testatrix  from  May,  1869,  up  to  the 
time  of  her  death,  and  was  intimately  acquainted  with  her — 
sometimes,  as  she  says,  seeing  her  every  month,  and  in  1874, 
being  at  the  house  where  the  testatrix  lived,  from  April  to 
October,  all  the  time,  and  prior  to  that  time,  as  she  testifies, 
having  seen  the  testatrix  every  month — had  frequent  oppor- 
tunities of  observing  her  mental  condition,  and  appears  from  her 
intelligence  to  have  been  able  properly  to  estimate  the  qualities 
of  the  testatrix's  mind.  She  testifies  that  she  frequentl}»  con- 
versed with  the  testatrix,  when  she  was  there  at  the  house, 
and  while  she  lived  there,  as  above  mentioned,  she  conversed 
with  her  every  day.  She  speaks  of  the  qualities  of  her  mind, 
and  says  she  observed  nothing  to  lead  her  to  conclude  that  the 
testatrix  had  become  irrational,  but  the  contrary.  Other  wit- 
nesses give  testimony  to  the  same  effect. 

It  is  alleged,  on  the  part  of  the  caveatrix,  that  the  testatrix  did 
not  know  what  property  she  had,  and  this  is  urged  as  strong  evi- 
dence of  want  of  capacity.  The  allegation  is  that  she  supposed  her 
property  amounted  only  to  $900,  whereas,  in  fact,  she  had  $5,000, 
and  the  interest  of  §10,000  for  her  life.  It  is  very  probable  that, 
in  speaking  on  the  subject,  she  spoke  of  her  annual  income,  which 


6  Stew.]  FEBRUARY  TERM,  1881.  543 

Merrill  v.  Kush. 

was  about  $900,  as  her  property.  But  it  is  quite  evident  from 
her  will  that  she  knew  that  she  had  much  more  than  $900,  for 
she  gives  nearly  $3,000,  in  small  legacies,  to  her  grandchildren 
and  daughters-in-law,  and  then  gives  the  residue  of  her  estate — 
presumably,  under  the  circumstances,  the  greater  part — to  her 
eight  children.  Moreover,  she  knew  who  had  charge  of  her 
property,  and  if  she  was,  indeed,  ignorant  of  so  important  a  fa  it 
as  the  amount  of  her  property,  Mr.  Vliet,  who  knew  all  about 
it,  could  not  have  failed  to  discover  it.  The  will  is  not  only  a 
natural  one,  but  it  evinces  great  care  on  the  part  of  the  testatrix 
for  those  who  had  a  right  to  her  estate  or  to  remembrance  in  her 
will.  As  before  stated,  she  mentions  a  score  of  her  grandchil- 
dren, and  did  not  forget  the  family  of  the  caveatrix  (who  is  a 
granddaughter),  for  she  gave  a  legacy  to  her  sister.  On  a  con- 
sideration of  all  the  evidence,  it  seems  to  me  quite  clear  that  the 
testatrix,  at  the  time  of  making  the  will  in  question,  was  pos- 
sessed of  testamentary  capacity,  and  that  it  is  her  true  last  will 
and  testament. 

The  decree  of  the  orphans  court  will  be  affirmed,  with  costs 
■^f  appeal  to  be  paid  by  the  appellant. 


CASES  ADJUDGED 

IK  THF 

COURT  OF  ERRORS  AND  APPEALS 

OF   THE 

STATE  OF  NEW  JERSEY, 
ON  APPEAL  FROM  THE  COURT  OF  CHANCERY. 

MARCH  TERM,  1881. 


George  W.  Smith,  appellant, 

V. 

The  Mayor  and  Common  Council  of  Newark,  respondent. 

1.  The  supplement  to  the  charter  of  the  city  of  Newark,  framed  April  15th, 
1868  (P.  L.  o)  1868  p.  1002),  construed,  and  held  to  be  constitutional. 

2.  The  burden  of  showing  error  is  on  the  appellant,  and  in  a  case  of  doubt- 
ful statutory  construction,  the  court  will  not  reverse. 


On  appeal  from  a  decree  of  the  chancellor,  reported  in  ^ith 
V.  Newark,  1  Stew.  Eq.  5. 

Mr.  F.  W.  Stevens^  for  the  appellant. 

The  bill  is  filed  to  remove  the  cloud  from  the  title  to  the  lands 
of  the  complainant,  arising  from  the  assessment  for  grading, 
curbing,  guttering,  paving  and  flagging  North  Broad  street,  now 
Belleville  avenue. 

35  (545) 


546         COURT  OF  ERRORS  AXD  APPEALS.  [33  Eq. 

Smith  V.  Mayor  and  Common  Council  of  Newark. 

The  question  to  be  considered  is  a  narrow  one,  and,  stated 
in  very  general  terms,  is  this : 

Do  the  facts  stated  on  the  record  bring  the  case  within  the 
ruling  of  this  court  in  Bogert  v.  City  of  Elizabeth,  12  C.  E.  Gr. 
668,  where  the  bill  to  set  aside  an  unconstitutional  assessment  was 
sustained  ?  or  do  they  bring  it  within  the  ruling  of  this  court  in 
Jei'sey  City  v.  Lembeck,  4-  Stew.  Eq.  255,  where  the  bill  to  set  aside 
an  assessment  which  was  illegal,  but  not  unconstitutional,  was 
dismissed  ? 

I.  The  provisions  of  the  statutes  under  which  the  assessment 
was  made  are  unconstitutional.  Doyle  v.  Newark,  1  Vr.  303 ; 
P.  L.  oj  1868  p.  1002  ;  State,  Doyle,  pros.  v.  Newark,  5  Vr.  237  ;  3 
a  E.  Gr.  527  ;  8  Vr.  J^J^  ;  12  C.  E.  Gh'.  569  ;  Gi-aham  v.  Pater- 
son,  8  Vr.  381 ;  Passaic  v.  State,  Del.  Lack.  <Sc  West.  R.  R.  pros. 
8  Vr.  539. 

II.  A  sale  of  the  property  under  an  assessment  which  was 
clearly  illegal,  having  been  made,  and  the  city  of  Newark  having 
become  the  purchaser  for  a  term  of  fifty  years,  and  having  taken 
a  certificate  of  sale  therefor,  such  certificate  of  sale,  with  an  asser- 
tion of  title  on  the  part  of  the  city,  constitutes  a  cloud  removable 
by  a  court  of  equity.     Jersey  City  v.  Lembeck,  Jf,  Stew.  Eq.  255. 

While  the  court  of  chancery  has  never  exercised  a  supervisory 
power  over  the  acts  of  municipal  bodies,  it  has  always  assumed 
jurisdiction  over  deeds  purporting  to  convey  lands,  the  existence 
of  which,  in  an  uncanceled  state,  has  a  tendency  to  throw  a  cloud 
over  the  title.     Story's  Eq.  Jur.  §  700. 

It  is  true  the  legislature  has  extended  the  beneficial  remedy  of 
c&'tiorari  to  the  case  of  a  deed  [Rev.  1045  §  15),  but  this  seems 
to  have  been  done  mainly  in  aid  of  the  action  of  ejectment  {State, 
Graham  p7'os.  v.  Paterson,  8  Vr.  384),  a"*^  the  power  of  chan- 
cery to  aflbrd  its  remedy  is  not  in  any  wise  interfered  with.  The 
sale  of  lands  for  taxes  or  assessments  is  the  execution  of  a 
naked  power  {State,  Baxter,  pros.  v.  Jersey  City,  7  Vr.  191),  and 
if  a  deed  has  been  given  in  execution  of  this  power,  and  a  title 
set  up  thereunder,  which  is  really  no  title,  why  should  not 
chancery  have  the  same  power  in  this  case  that  it  admittedly 
has  in  all  other  cases  ? 


6  Stew.]  MARCH  TERM,  1881.  547 

Smith  V.  Mayor  and  Common  Council  of  Newark. 

3Ir.  Henri/  Young,  for  respoudent. 

This  court,  sitting  as  a  court  of  equity,  is  asked  to  assume  the 
prerogative  of  the  supreme  court,  which  has  always  hitherto 
effectively  controlled  the  action  of  inferior  tribunals  exercising 
particular  legal  functions. 

No  doubt  can  exist  that  the  complainant's  remedy  at  lata  is 
entirely  efficacious,  unless  he  has  forfeited  it  by  his  laches. 

His  failure  to  avail  himself  promptly  of  his  legal  remedy, 
gives  him  no  right  to  relief  here.  Leiois  v.  Elizabeth,  10  C.  E. 
Gi\  ^98. 

His  remedy  at  law  would  be  even  more  beneficial  than  that 
which  he  now  seeks.     Lembeck  v.  Jersey  City,  4-  Stew.  Eq.  255. 

The  remedy  at  law,  then,  being  adequate,  the  complainant  can 
claim  no  relief  in  this  court. 

A  court  of  equity  will  not  undertake  to  set  aside  titles  founded 
on  tax  or  assessment  sales,  simply  because  the  assessments  have 
been  illegally  made.  Morris  Canal  and  Banking  Co.  v.  Newark,  1 
Beas.  252  ;  Holmes  v.  Jersey  City,  1  Beas.  310;  Liebstein  v.  Neio- 
ark,  9  C.  E.  Gr.  206;  Dusenbury  v.  Newark,  10  C.  E.  Gh\  287; 
Bogertv.  Elizabeth,  10  C.  E.  Gr.  4£7 ;  Lewis  y.  Elizabeth,  10 
C.  E.  Gr.  289  ;  Lembeck  v.  Jersey  City,  4-  Stew.  Eq.  255. 

But  the  complainant  invokes  the  aid  of  the  statute  of  March 
2d,  1870  (P.  L.  p.  20),  entitled  "An  act  to  compel  the  determi- 
nation of  claims  to  real  estate,  and  to  quiet  title  to  the  same." 

Several  objections  exist  to  the  application  of  this  statute  to 
this  suit. 

1.  The  statute  requires  (sec.  2)  that  notice  shall  be  given  to 
the  defendant  with  his  subpoena,  describing  the  land  with  pre- 
cision, stating  the  object  of  the  suit,  and  that  if  defendant  claims 
any  title  or  interest  or  encumbrance  on  said  lands,  he  shall 
answer  said  bill,  but  not  otherwise. 

No  such  notice  was  given  in  this  case. 

2.  The  statute  authorizes  the  bringing  of  suit  in  equity  to  settle 
title  to  lands  only  when  the  person  whose  title  is  disputed  is  (a) 
in  peaceable  possession  of  said  lands,  and  (6)  when  no  suit  (spend- 
ing to  test  the  validity  of  said  title. 

These  facts  are  jurisdictional,  and  both  must  exist  to  enable 


648         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Smith  V.  Mayor  and  Common  Council  of  Newark. 

tlie  court  to  entertain  jurisdiction.  The  complainant  seeking 
the  aid  of  the  statute  must  bring  himself  within  its  provisions. 

The  bill  states  neither  of  these  facts. 

But  (3)  a  more  serious  objection  exists  to  the  maintenance  of 
complainant's  suit.  This  act  of  1870,  if  at  all  applicable  to 
such  a  state  of  affairs  as  that  in  this  suit,  proposes  nothijig  less 
than  that  the  constitutional  powers  and  jurisdiction  of  the 
supreme  court  of  the  state  should  be  curtailed  by  legislative 
enactment,  and  transferred  to  a  court  of  equity.  The  inability 
of  the  legislature  to  give  such  force  and  effect  to  this  law  has 
been  recently  determined  in  this  court.  Lembeck  v.  Jersey  City, 
4.  Stew.  Eq.  255. 

No  provision  exists  in  any  law  of  this  state  for  re-assessment 
when  assessments  are  vacated  in  a  court  of  equity. 

Courts  properly  refuse  to  grant  relief  where  no  provision  is 
made  for  re-assessment.  State,  Wilkinson  pros.  v.  Trenton,  7  Yr. 
499. 

I  submit  (1)  that  the  act  of  1868  is  constitutional.  Cooley  on 
Const.  Lim.  181-184. 

Such  an  enactment  was  held  valid  by  this  court  in  Village  of 
Passaic  v.  State,  8  Vr.  538. 

But  (2)  it  is  contended  that  the  complainant  should  prevail, 
because  the  report  fails  to  show  affirmatively  that  the  assessment 
was  limited  to  the  actual  benefit. 

The  act  relative  to  certiorari  (P.  L.  of  1871  p.  534)  provides 
that  the  courts  of  law  shall  have  full  power  to  determine  disputed 
questions  of  fact  as  well  as  law,  with  reference  to  taxes  and  as- 
sessments. Morris  and  Essex  R.  R.  Co.  v,  Jersey  City,  7  Vr.  56  ; 
Baxter  v.  Jersey  City,  7  Vr.  188  ;  Graham  v.  Paterson,  8  Vr.  384. 

A  suggestion  is  made  in  the  bill  that  the  complainant  should 
be  relieved  because  this  assessment  was  made  after  he  purchased 
the  property,  and  without  knowledge  that  it  was  to  be  made. 

But  the  principle  of  law  is  well  established  that  if  the  original 
assessment  for  a  local  improvement  be  insufficient,  the  legisla- 
ture may  constitutionally  authorize  a  re-assessment,  and  make  it 
operate  upon  all  the  property  benefited,  that  is,  upon  all  that  was 
originally  liable  to  contribute,  and  such  a  law  is  valid  as  against  a 
party  purchasing  intermediate  the  assessment  and  re-assessment. 


6  Stew.J  march  term,  1881.  549 

Smith  V.  Mayor  and  Common  Council  of  Newark. 

jyUlon  on  Mun,  Corp.  §  65^,  and  note  ;   Cooky  on  Taxation  233 ; 
Doyle  V.  Newark,  5  Vr.  2S7. 

The  opinion  of  the  court  was  delivered  by 

Beasley,  C.  J. 

The  object  of  the  bill  in  this  case  is  to  remove  a  cloud  from 
the  title  of  the  complainant,  who  is  the  appellant  here,  to  certain 
lands  situated  in  the  city  of  Newark.  The  proceeding  is  founded 
on  tlie  statute  entitled  "An  act  to  compel  the  determination  of 
claims  to  real  estate  in  certain  cases,  and  to  quiet  the  title  (o  the 
same."  {Itev.  1189).  The  lands  in  question  had  been  sold  by 
force  of  an  assessment  levied  upon  them  for  a  portion  of  the 
costs,  damages  and  expenses  consequent  on  regulating,  grading, 
paving,  curbing  and  flagging  of  the  street  on  which  they  fronted. 
The  city  had  become  the  purchaser  at  this  sale. 

The  ground  laid  for  relief  against  this  course  of  law  is  that 
the  law  that  was  enforced  by  that  sale  was  imposed  by  virtue  of 
certain  legislation  that  is  unconstitutional.  If  that  contention  is 
not  well  founded,  the  bill  has  no  legal  or  equitable  foundation. 

The  inquiry  thus  raised  touches  the  proper  construction  of  the 
supplement  to  the  charter  of  the  city  of  Newark,  approved  April 
15th,  1868.  (P.  L  of  1868  p.  1002).  This  law  is  remedial  of  the 
act  to  which  it  is  auxiliary,  in  respect  to  the  mode  of  assessing 
the  costs  and  charges  arising  in  the  grading,  paving,  &c.,  of 
streets  in  this  city.  That  subject  was  regulated  by  section  one 
hundred  and  nine  of  the.  charter;  and  as  such  regulation  con- 
sisted of  a  direction  that  such  costs  and  charges  should  be  dis- 
tributed, under  "  a  just  and  equitable  assessment  upon  the  owners 
of  lands  and  real  estate  on  the  line  of  said  street,"  by  the  city 
surveyor,  the  unconstitutionality  of  it  was  manifest,  as  it  provided 
no  standard  for  the  measuring  of  its  imposition,  other  than  the 
discretion  of  the  officer,  nor  did  it  attempt  to  restrict  the  land- 
owner's quota  to  the  special  benefit  imparted  to  his  land  by  the 
improvement.  This  being  the  obvious  and  admitted  imperfection 
of  the  system  originally  established,  it  is  further  insisted  that  the 
supplementary  act  just  referred  to  does  not  so  remodel  the  scheme 
as  to  make  it  comport  with  the  constitutional  requirement.     It 


550         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Smith  V.  jMayor  and  Common  Coimcil  of  Newark. 

thus   becomes   necessary  to   collate    this   sui^plement    with    the 
charter. 

The  supplement  recites  that  the  city  had  undertaken  and  per- 
formed, at  considerable  cost,  certain  works  and  imi)rovemeuts  in 
several  specified  streets,  some  of  which  had  been  opened  and 
others  graded,  and  that  assessments  therefor  had  been  made,  but, 
on  account  of  certain  informalities  and  defects  in  the  proceedings, 
the  city  was  embarrassed  in  collecting  the  costs  and  expenses,  and 
therefore  it  was  enacted  as  follows : 

"  That  it  shall  be  lawful  for  the  said  common  council,  in  the  ca«e  of  each  of 
tlie  aforesaid  works  or  improvements,  respectively,  to  appoint  five  disinterested 
freeholders  of  said  city,  to  make  assessment  of  the  whole  costs,  damages  and 
expenses  of  the  works  or  improvement  in  respect  to  which  they  may  be  ap- 
pointed, upon  tlie  owners  of  the  land  and  real  estate  benefited,  or  intended  to 
lie  benefited,  according  to  the  principles  prescribed  for  similar  cases  in  the  act 
to  which  this  is  a  supplement ;  *  *  *  and  it  shall  also  be  lawful  for  the 
said  commissioners,  in  case  they  deem  it  proper  and  equitable,  tliat  any  portion 
of  the  whole  costs,  damages  and  expenses  of  either  of  said  works  or  improve- 
ments should  be  borne  by  the  city  at  large,  to  so  estimate  and  declare  in  their 
report,  and  thereupon  they  shall  assess  the  balance  of  the  whole  amount  of 
Buch  costs,  damages  and  expenses  upon  the  owners  of  the  lands  and  real  estate 
benefited,  or  intended  to  be  benefited,  as  hereinbefore  is  directed." 

Upon  reading  this  section,  it  becomes  at  once  apparent  that 
what  it  does,  in  express  terms,  is  this :  to  declare  that  certain  com- 
missioners may  be  appointed  to  assess  these  costs  and  expenses 
on  the  lands  benefited  ;  but  the  mode  of  doing  that  is  not  defined, 
and  for  such  mode,  it  refers  to  the  charter,  for  it  says  that  such 
assessment  shall  be  made  "according  to  the  principles  prescribed 
for  similar  cases  in  the  act  to  which  this  is  a  supplement."  The 
meaning  of  this  reference  is  the  point  of  the  present  inquiry. 
What  class  of  cases  are  the  "  similar  cases  "  here  indicated  ?  The 
reference  must  point  to  one  of  the  two  classes  of  proceedings 
provided  in  the  charter,  the  one  being  that  which  pertains  to  the 
opening  of  streets,  and  the  other  that  which  pertains  to  the  regu- 
lating and  grading  of  streets.  The  former  of  these  methods  of  as- 
sessment is  defined  in  section  one  hundred  and  five  of  the  charter  of 
1857  (P.  L.  oflSS?}:).  166),  and  which  is  admitted  to  be  constitu- 
tional; the  latter,  by  section  one  hundred  and  nine,  and  which  pre- 
scribes a  mode  of  Motion  which,  as  hns  been  already  said,  is  unoon- 


€  Stew.]  MARCH  TERM,  1881.  551 

Smith  V.  Mayor  and  Common  Council  of  Newark. 

stitutional.  The  decision,  therefore,  turns  on  the  question  whether 
the  proceeding  authorized  by  this  supplement  of  1868  is  to  be 
patterned  after  the  method  prescribed  in  section  one  hundred  and 
five,  or  after  that  directed  in  section  one  hundred  and  nine.  We 
have  seen  the  relative  words  are  those  contained  in  the  direction 
to  make  the  assessment  "  according  to  the  principles  prescribed 
for  similar  cases  in  the  act  to  which  this  is  a  supplement."  On 
the  side  of  the  appellant,  it  is  contended  that  these  expressions 
denote  similarity  in  the  work  or  improvement ;  that  is  to  say, 
when  the  commissioners  by  force  of  this  supplement,  have  in 
hand  a  re-assessment  which  relates  to  the  grading  of  a  street,  the 
■case  similar  to  that  in  the  charter,  is  the  work  of  grading  pro- 
vided for  in  section  one  hundred  and  nine,  and  so  vice  versa.  Tiie 
term  "  similar  cases  "  imports  similar  improvements.  It  is  mani- 
fest that  there  is  considerable  force  in  this  view,  but  it  is  also 
manifest  that  there  are  other  considerations  having  an  adverse 
aspect.  The  proceeding  set  on  foot  by  the  supplement  is  a  pro- 
ceeding to  be  conducted  by  commissioners,  and  if  we  look  for  a 
*'  similar  case "  of  that  kind  we  will  not  find  it  in  section  one 
hundred  and  nine,  for  by  force  of  that  provision  the  city  surveyor 
is  to  apportion  the  expenses,  and  not  commissioners.  We  must 
resort  to  section  one  hundred  and  six,  if  we  would  find  a  simili- 
tude in  this  particular. 

And  so  we  come  to  the  same  result  if  we  regard  the  class 
■of  persons  who  are  to  be  assessed,  for,  by  the  supplement, 
and  by  section  one  hundred  and  six,  the  expenses  are  to  be 
apportioned  on  the  entire  class  who  are  benefited,  while,  accord- 
ing to  section  one  hundred  and  nine,  they  are  to  be  imposed 
only  on  lands  bordering  on  the  streets.  In  addition  to  this,  there 
is  a  slight  indication,  having  the  same  tendency,  in  section  two 
of  this  supplement,  from  the  fact  that  it  directs  the  enforcement 
of  the  assessments  authorized  by  it  to  be  conducted  after  the 
manner  of  enforcing  the  assessments  imposed  under  section  one 
hundred  and  six.  But  it  is  not  necessary  to  pursue  this  discus- 
sion further,  for  I  think  enough  has  been  said  to  show  that  the 
expression  in  question  is  plainly  ambiguous,  and  that  it  cannot 
be  freed  from  uncertainty  by  any  train  of  reasoning.  The  truth 
is,  that  these  laws  which  this  court  is  now  called  upon  to  construe, 


652         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Hoag  I'.  Sajre. 

like  very  much  of  the  legislation  that  relates  to  our  muuicipal 
governments,  are  so  crudely  put  together,  and  are  made  up  of 
such  vague  phrases,  tiiat  it  is  impossible  to  avoid  the  unsatis- 
factory feeling  that  any  judicial  interpretation  of  them  cannot  be 
attended  with  any  higher  decree  of  certitude  than  that  which  an 
intelligent  conjecture  carries  with  it.  In  the  court  below  this 
clause  was  interpreted  in  a  sense  which  will  uphold  these  pro- 
ceedings, and  it  is  the  duty  of  this  court  to  lean  strongly  towards 
that  same  result.  The  burthen  of  showing  error  iu  the  decree 
under  review  is  on  the  appellant ;  to  raise  a  doubt  in  that  respect 
is  not  enough ;  and  taking  the  argument  of  the  counsel  of  the 
appellant  at  its  best,  it  does  not  seem  to  me  to  do  more  than  that. 
The  consequence  is,  the  decree  should  be  affirmed. 

Decree  unanimously  ajirmed. 


Francis  M.  Hoag,  appellant, 


Edward  Sayre  et  al.,  respondents. 

1.  Where  there  are  three  encumbrances  on  the  same  property,  the  first  of 
which  is  entitled  to  priorty  over  the  second,  but  is  subordinate  to  the  third, 
which  is  subordinate  to  the  second,  they  will  be  niarslialed  as  follows :  the 
third,  if  it  be  for  as  large  a  sum  or  a  larger  sum  than  the  first,  will  be  paid  to 
the  extent  of  the  sum  secured  by  the  first ;  then  the  second  encumbrance  will  be 
paid  in  full  if  the  property  is  sufficient,  and  then  the  residue  to  the  third,  if 
there  be  a  residue ;  and  then  tlie  first  incumbrance  will  come  in.  The  prin- 
ciple of  Clement  v.  Kaighn,  2  McCkrt.  J^S,  approved  and  developed. 

2.  A  took  a  chattel  mortgage  for  $2,150  and  failed  to  record  it ;  B,  with 
knowledge  of  the  first  mortgage,  took  a  second  one  for  $1,160;  C  obtained  a 
judgment  for  $3,000  on  the  same  day  with  the  second  mortgage,  and  made  a 
levy. — BeW,  that  C  had  the  first  lien  to  the  extent  of  $2,150,  the  amount  of  the 
first  mortgage ;  then  that  the  residue  of  the  judgment  and  the  second  mortgage 
should  be  paid  'pari  passUf  and,  lastly,  that  the  first  mortgage  should  come  in 
for  payment. 


On  appeal  from  a  decree  advised  by  the  vice-chancellor,  and 
reported  in  Sayre  v.  Hewes,  5  Stew.  Eq.  652. 


6  Stew.]  MARCH  TERM,  1881.  553 

Hoag  V.  Sayre. 

On  the  3d  of  December,  1877,  the  appellant,  Hoag,  obtained 
a  chattel  mortgage  on  the  goods  in  question.  This  mortgage  was 
not  recorded  in  the  proper  county;  it  was  to  secure  $2,150.  On 
the  14th  of  February,  1878,  Frederick  Fisher,  having  knowl- 
edge of  the  prior  mortgage,  took  a  second  mortgage  on  the  same 
property  to  secure  $1,160.  Edward  Sayre  holds  a  judgment  by 
confession  against  the  mortgagor  for  §6,000  debt  and  §4  costs, 
which  was  entered  on  the  27th  of  February,  1878.  Execution 
on  this  judgment  was  duly  taken  out  and  levied. 

Messrs.  Field,  for  appellant. 

On  January  11th,  A.  D.  1877,  Margaret  V.  Hewes,  then 
residing  in  Fulton  street  in  the  city  of  Newark,  executed  a 
chattel  mortgage.  Exhibit  D  1  for  ap{:)ellant,  Hoag,  on  certain 
chattels  then  being  in  a  building  in  the  city  of  Newark,  to 
Francis  M.  Hoag,  and  this  mortgage  was,  on  the  12th  day  of 
January,  a.  d.  1877,  filed  in  the  office  of  the  register  of  the 
county  of  Essex.  This  mortgage  was  given  to  secure  indebted- 
ness, of  which  Exhibit  D  3  for  Hoag  is  an  itemized  bill.  Decem- 
ber 3d,  A.  D.  1877,  Margaret  V.  Hewes  executed  a  second  mort- 
gage to  Francis  M.  Hoag,  to  secure  the  whole  of  the  above 
indebtedness,  and  some  additional  indebtedness,  of  which  Exhibit 
jD  4  is  an  itemized  bill.  At  the  time  of  taking  the  second 
mortgage,  the  first  one  was  not  given  up  or  canceled,  but  is  still 
in  the  possession  of  Mr.  Hoag. 

On  February  14th,  1878,  Margaret  V.  Hewes  executed  a  third 
mortgage  on  the  same  chattels  to  Frederick  Fisher,  whicii  was 
filed  March  2d,  a.  d.  1878,  in  the  office  of  the  register  of  the 
county  of  Hudson. 

The  fourth  mortgage  was  executed  by  Mrs.  Hewes  to  Edward 
Sayre  on  the  same  chattels,  which  was  also  filed  in  the  office  of 
the  register  of  Hudson  county  on  the  day  of  its  date. 

On  February  27th,  a.  d.  1878,  Edward  Sayre,  trustee  &c., 
recovered  a  judgment  by  confession  against  Mrs.  Hewes  on  bond 
and  warrant  of  attorney,  in  the  Essex  circuit  court,  for  $14,000. 

On   March   2d,  A.  d.  1878,  Albert  H.   Hewes  recovered  a 


554         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 


Hoag  V.  Sayre. 


judgment  by  coufessioa  ou  bond  and  warrant  of  attorney,  in  tlie 
same  court,  for  §6,000. 

Albert  H.  Hewes,  immediately  after  its  recovery,  assigned  bis 
judgment  to  Edward  Sayre.  No  consideration  was  paid  lor  tlie 
assignment.  Edward  Sayre  is  the  son-in-law,  and  Albert  H. 
Hewes  is  the  son,  of  Margaret  V.  Hewes. 

Edward  Sayre  and  Frederick  Fisher  knew,  wheu  they  re- 
ceived the  mortgages  made  to  them,  that  Mrs.  Margaret  V. 
Hewes  had  previously  executed  the  mortgages  to  ]\Ir.  Hoag. 

They  are  both  subsequent  mortgagees  with  notice  of  the  ante- 
cedent mortgages. 

The  question  presented  i.*,  which  of  these  mortgages  and  judg- 
ments liave  priority. 

I.  What  is  the  effect  of  a  recital  in  a  chattel  mortgage  when 
the  instrument  states  her  residence  to  be  in  a  certain  place  ? 

It  is  not  necessary  to  an  equitable  estoppel  that  the  party  should 
design  to  mislead.  If  his  act  was  calculated  to  mislead,  and 
actually  has  misled  another,  who  acted  upon  it  in  good  faith,  and 
in  the  exercise  of  reasonable  care  and  diligence  under  all  the  cir- 
cumstances, that  is  enough.     30  N.  Y.  226. 

They  are  concluded  by  the  recitals  and  admissions  in  the 
mortgage.  Hudson  v.  Winsloio^  6  Vr.  Jy37 ;  State  Bank  of 
Elizabeth  v.  Chetwood,  3  Hal.  1. 

A  court  of  equity  will  never  lend  its  active  aid  to  a  party  who, 
by  artful  silence  and  superior  knowledge,  has  gained  an  unfair 
advantage  over  another  who  stands  by  and  acquiesces  in  the 
recital.  6  C.  E.  Qr.  283;  1  Zab.  395,  Jfi3 ;  Fonb.  Eq.  124, 
16 J^  ;  3  Stock.  176  ;  1  Gr.  Ch.  J^2. 

A  court  of  equity  will  not  aid  one  against  another  who  has 
been  misled,  to  his  prejudice,  by  the  conduct  of  the  former.  8  C. 
E.  Gr.4,77;  1  Beas.  323. 

Where  any  one  has  done  an  act  or  made  a  statement  which 
•would  be  fraud  on  his  part  to  controvert,  and  such  act  or  state- 
ment has  so  influenced  another  that  he  lias  acted  upon  it,  the 
party  making  it  will  be  estopped  from  the  power  of  retraction. 
^  Stock.  510. 

A  party  cannot  question  a  conveyance  as  fraudulent  against 


6  Stew.]  MARCH  TERM,  1881.  555 

Hoag  V.  Sayre. 

himself  as  a  creditor  who  advised  and  counseled  its  execution. 
1  Stock.  160. 

Recitals  in  a  deed  are  binding  on  the  parties  and  privies  to  it, 
and  those  claiming  under  them.  West  v.  Pine,  4-  Wash.  C.  C. 
691. 

Whilst  this  question  of  registration  depends  in  a  great  measure 
upon  state  legislation,  the  lex  loci  contractus  must  govern.  The 
various  state  courts  have  assented  to  and  affirmed  this  doctrine; 
and  if  it  be  applicable  to  citizens  of  different  states,  is  it  any  less 
so  to  citizens  of  different  counties  of  the  same  state  ?  The  courts 
do  not  require  a  chattel  mortgage  to  be  recorded  in  any  county 
in  which  the  property  may  be  taken,  or  the  mortgagor  may  re- 
move to,  nor  do  the  laNvs  of  any  state  of  this  Union  require  it. 
One  registration  in  conformity  with  the  statute  is  sufficient  as  to 
individuals.     Herman  on  Chattel  Mort.  175. 

II.  The  taking  of  the  second  mortgage  by  the  appellant,  Hoag, 
on  December  3d,  A.  d.  1877,  did  not  extinguish  the  first.  Gre- 
gory V.  Thomas,  SO  Wend.  17;  Hill  v.  Beebe,  3  Kern.  557. 

The  mere  act  of  taking  a  new  security  from  the  same  i^arty, 
and  upon  the  same  property,  does  not  merge  or  extinguish  a 
prior  one,  where  both  are  of  the  same  quality  and  degree.  The 
debt  was  not  paid,  and  until  that  was  done,  all  collateral  securities 
must  stand.  Butler  v.  Ililler,  1  Comst.  500 ;  Gregory  v.  Thomas, 
£0  Wend.  17. 

A  subsequent  security  for  the  same  debt,  or  for  a  debt  of  equal 
degree  with  a  former,  will  not,  by  operation  of  law,  extinguish  it. 
Manhood  v.  Crick,  Cro.  Eliz.  716 ;  Noncood  v.  Griffin,  Cro. 
Eliz.  727 ;  Maynard  v.  Crick,  Cro.  Car.  86 ;  Enos^s  Case,  Lit. 
58;  Preston  v.  Preston,  Cro.  Eliz.  817 ;  Hill  v.  Beebe,  3  Kern. 
556. 

The  lien  continues  until  the  debt  is  paid  or  extinguished,  or 
the  lien  itself  is  destroyed  by  agreement  between  the  parties. 
Until  the  debt  is  paid,  all  collateral  securities  stand  ;  the  security 
of  a  mortgage  is  in  no  way  impaired.  Herman  on  Chattel  Mort. 
129;  Butler  v.  MiUer,  1  N.  Y.  500;  Brinkerhoff  v.  Lan- 
ding, 4-  Johns.  Ch.  65;  Gregory  v.  Thomas,  20  Wend.  17 ; 
Williams  v.  Starr,  5  Wis.  53^;  Chapman  v.  Jenkins,  31  Barb. 


556        COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Hoag  V.  Sayre. 

164-;  Bank  &e.,  v.  Finch,  8  Barb.  Ch.  293 ;  Robinson  v.  Urqu- 
hart,  1  Beas.  515  ;  Higgins's  Case,  6  Rep.  45;  8  Johns.  54;  lo 
Johns.  555. 

Where  a  mortgage  is  given  to  secure  a  certain  debt  it  will  be 
a  valid  security  for  that  purpose,  whatever  form  that  debt  may 
assume  if  it  can  be  traced.     Paterson  v.  Johnson,  7  Ohio  St.  225. 

A  subsequent  security  for  a  debt  of  equal  degree  with  a  former, 
will  not,  by  oj)eration  of  law,  extinguish  it.  BuJtler  v.  Miller,  1 
N.  Y.  500  ;  Gregory  v.  Thomas,  20  Wend.  17 ;  Higgins^s  Case, 
6  Rep.  45  ;  Rawden  v.  Turten,  Browne,  74 ,'  Phelps  v.  Johnson, 
8  Johns.  54  >  Preston  v.  Preston,  Cro.  Eliz.  817 ;  Mumford  v. 
Stocke)',  1  Conn.  78 ;  Cornell  v.  Lamb,  20  Johns.  407 ;  Enos^s 
Case,  Litt.  58 ;  Day  v.  Leal,  I4  Johns.  4O4  >  Hamilton  v.  Cul- 
lender, 1  Dall.  4-^0;  Andrews  v.  Smith,  9  Wend.  53 ;  Hill  v. 
Beebe,il3  N.  Y.  556. 

So  that  the  taking  of  a  second  mortgage  for  the  same  debt  will 
not  relinquish  the  first  without  an  express  release  of  the  first,  aud 
this  even  where  the  note  and  mortgage  given  in  renewal  is  for  a 
larger  amount  than  the  original.  Burnhisel  v.  Furman,  22 
Wall.  170  ;  Boyd  v.  Beck,  20  Ala.  703 ;  Packard  v.  Kingman, 
11  loioa  219;  HiU  v.  Beebee,  13  N.  Y.  556;  Hutchinson  v. 
Swartsweller,  4  Stew.  Eq.  207,  and  the  cases  therein  cited. 

III.  As  between  the  chattel  mortgages  of  Francis  M.  Hoag, 
Frederick  Fisher  and  Edward  Sayre,  it  is  not  material  where 
Hoag  filed  his  chattel  mortgage.  Meech  v.  Patchin,  I4  N.  Y. 
71 ;  National  Bank  of  the  Metropolis  v.  Sprague,  6  C.  E.  Gr. 
530;  De  Courcey  v.  Collins,  6  C.  E.  Or.  360. 

IV.  Whether  the  preferences  sought  by  Albert  H,  Hewes  and 
Edward  Sayre,  in  obtaining  the  judgments,  are  not  fraudulent  as 
against  the  defendant  Francis  M.  Hoag. 

Albert  H.  Hewes  is  the  son,  aud  Edward  Sayre  is  the  son-in- 
law  of  the  defendant  Margaret  V.  Hewes. 

Whatever  puts  a  party  upon  inquiry  amounts,  in  judgment 
of  law,  to  notice,  providing  the  inquiry  becomes  a  duty,  as  in 
the  case  of  purchaser  and  creditor,  and  would  lead  to  the  knowl- 
edge of  the  requisite  fact  by  the  exercise  of  ordinary  diligence. 
Troup  V.  Hurlbut,  10  Barb.  354  ;  4-  Kent's  Com.  179. 


6  Stew.]  MAECH  TERM,  1881.  557 

Hoag  V.  Sayre. 

Notice  to  a  subsequent  attaching  creditor  of  a  valid  mortgage, 
not  recorded,  is  equivalent  to  a  record.  Tucker  v.  Tilton^  55  N. 
H.  223  ;  Oooding  v.  Riley,  50  N.  H.  J^OO  ;  Patton  v.  iMoore,  32 
N.  H.  382. 

Knowledge  is  regarded  as  equivalent  to  notice  of  the  highest 
degree.  1  Lead.  Cas.  in  Eq.  llfS ;  Crocher  v.  Crocker,  31  N. 
F.  507;    Wooster  v.  Sherwood,  25  N.  Y.  278. 

If  there  be  an  existing  mortgage  at  the  time  the  judgment  is 
rendered,  that  judgment  will  bind  only  the  equity  of  redemp- 
tion, whetlier  the  mortgage  be  recorded  or  not.  Jones  on  Mort. 
%  4.60  ;  Knell  v.  Green  Street  Building  Ass.,  3^.  Md.  67  ;  Hackeit 
v.  CaUender,  32  Vt.  97. 

If  a  creditor  have  actual  notice  of  a  prior  unrecorded  mort- 
gage at  the  time  of  obtaining  his  judgment  lien,  he  will  hold 
his  lieu  subject  to  such  mortgage.     Jones  on  Mort.  §  4-^1. 

V.  Disregard  of  notice  amounting  to  fraud.  Curtis  v.  Mundy, 
S  Meic.  4.05. 

Notice,  if  sufficient  to  put  him  upon  inquiry  leading  to  the 
truth,  will,  in  general,  be  regarded  as  good  notice  of  the  ulti- 
mate fact  to  be  established.  Gh-een  v.  Slayer,  4-  Johns.  Ch.  38  ; 
McDaniel  v.  Flower  Brook  Manufacturing  Co.,  22  Vt.  274-; 
Mayhin  v.  Kirby,  4-  Rich.  Eq.  105 ;  Raritan  Water  Power  Co. 
v.  Veghte,  6  C.  E.  Gr.  4.63;  Hoy  v.  Bramhall,  4,  G.  E.  Gr.  563; 
Danforth  v.  Dart,  4-  Duer  101 ;  Sterry  v.  Arden,  1  Johns.  Ch. 
261 ;  Pendleton  v.  Fay,  2  Paige  202  ;  Tuttle  v.  Jackson,  6  Wend. 
213;  Hoy  v.  Bramhall,  4.  C.  E.  Gr.  572;  4.  Kent  179;  Jones 
v.  Smith,  1  Hare  4^. 

It  is  bad  faith  for  one  to  attempt  the  circumvention  of  the 
true  owner  of  the  property  by  endeavoring  to  anticipate  him  ia 
gaining  the  advantage  to  be  derived  from  an  acquisition  of  the 
legal  title.  Kennedy  v.  Daly,  1  Sch.  &  Lef.  355 ;  Coble  v. 
Nonemaker,  78  Pa.  St.  501 ;  Kepler  v.  Davis,  80  Pa.  St.  153. 

VI.  To  what  extent  is  the  complainant,  Edward  Sayre,  a 
creditor  ? 

YII.  Mortgages  to  indemnify  sureties.  Rights  of  sureties 
and  of  creditors. 


558        COURT  OF  ERRORS  AND  APPEALS.    [33  Eq. 

Hoag  V.  Sayre. 

If  the  indemnity  is  against  a  contingent  liability,  there  can 
be  no  substitution  until  the  liability  has  become  absolute.  Os- 
born  V.  Noble,  4-^  Miss.  4-^9 ;  Hall  v.  Ciishm<x,n,  16  N.  H.  Ifi2 ; 
Bank  of  Virginia  v.  Borseau,  12  Leigh  370. 

Thus  a  mortgage  made  to  an  endorser  of  a  note  for  the  maker?3 
accommodation,  to  secure  him  against  liability,  is  not  acces- 
sary to  the  principal  obligation,  but  simply  a  personal  indem- 
nity, depending  upon  the  payment  of  the  note  by  the  endorser. 
Until  the  endorser  pays  the  money  on  his  endorsement,  he  can 
maintain  no  action  for  money  paid.  Miller  v.  Henri/,  3  Pa. 
St.  380  ;  Gardener  v.  Cleveland,  9  Pick.  337 ;  Shepard  v.  Shep- 
ard,  6  Conn.  37. 

VIII.  Is  a  chattel  mortgage  valid  as  against  a  creditor  of  the 
mortgagee,  unless  the  same  is  filed  pursuant  to  the  statute? 
Astor  V.  Wells,  4.  Wheat.  466;    Wade  on  Notice  §  228. 

Whoever  is  a  purchaser  at  an  execution  sale,  whether  he  be  a 
creditor  or  not,  is  charged  with  constructive  notice  of  all  instru- 
ments affecting  the  title,  executed  and  delivered  by  the  debtor 
prior  to  the  judgment,  and  subsequently  recorded  prior  to  the 
sale.  Jackson  v.  Post,  15  Wend.  588  ;  Williamson  v.  Broion,  15 
N.  Y.  354;  Whitehead  y.  Jordan,  1  You.  &  Coll.  313 ;  Mus- 
grove  v.  Benson,  5  Oregon  313  ;  Wade  on  Notice  §  231. 

Unregistered  deeds  are  good  against  creditors,  with  sufficient 
notice  to  put  them  upon  inquiry.  Dixon  v.  Doe,  1  Sm.  & 
Marsh.  70;  Priest  v.  Roll,  1  Pick.  16 4. 

The  one  who  seeks  to  take  advantage  of  an  unregistered  in- 
strument, of  the  existence  of  which  he  has  been  fully  informed, 
will  be  allowed  to  enjoy  no  special  advantages,  although  the 
failure  to  record  the  mortgage  was  fraudulent  as  to  others. 
Pike  v.  Armstead,  1  Dev.  Eq.  110. 

The  omission  to  renew  it  did  not  impair  its  force  as  against 
a  person  standing  in  the  situation  of  the  complainant.  Sanger 
V.  Eastwood,  19  Wend.  515. 

Messi's.  CovM  &  Howell,  for  respondents. 

I.  Margaret  V.    Hewes,    the    mortgagor,   at    the    time    of 


6  Stew.]  MARCH  TERM,  1881.  559 

Hoag  V.  Sayre. 

giving  the  chattel  mortgage  to  Hoag,  was  a  resident  of  Hudson 
county,  and  not  of  Essex  county,  where  the  chattels  mortgaged 
were  located. 

Her  statement  that  she  was  at  that  time  a  resident  of  Newark, 
in  Essex  county,  if  any  such  statement  was  made,  could  only 
affect  the  relations  of  the  parties  to  the  mortgage,  and  could  not 
affect  the  rights  of  the  complainant,  a  judgment  creditor. 

II.  The  statute  provides  that  chattel  mortgages  must  be  filed 
in  the  county  where  the  mortgagor  resides,  not  where  the  chattels 
are  located,  in  all  cases  where  the  mortgagor  resides  in  this  state. 

If  the  mortgagor  does  not  reside  in  this  state,  the  mortgage 
must  be  filed  in  the  county  where  the  chattels  are  located. 

III.  The  statute  providing  for  filing  chattel  mortgages, 
makes  such  filing  constructive  notice  only  to  subsequent  pur- 
chasers and  mortgagees  ;  if  they  take,  respectively,  title  to,  or  lien 
on,  the  chattels  mortgaged  after  such  filing,  they  are  not  pur- 
chasers or  mortgagees  in  good  faith — they  are  charged  with 
notice. 

But  the  statute  does  not  affect  or  operate  on  the  rights  of  judg- 
ment creditors ;  they  are  not  charged  with  notice  by  the  filing  of 
the  mortgage. 

The  words  of  the  statute  are  that  chattel  mortgages  "sh-.ii 
be  absolutely  void  as  against  the  creditors  of  the  mortgagor,  and 
as  against  subsequent  purchasers  and  mortgagees  in  good  faith, 
unless  the  mortgage,  or  a  true  copy  thereof,  shall  be  filed  as 
directed,  &c." 

It  makes  two  classes  of  persons  as  against  whom  the  mortgage 
shall  be  void — 

(1)  The  creditors  of  the  mortgagor,  who  need  not  be  such  in 
good  faith,  in  the  sense  used  in  the  act. 

(2)  Subsequent  purchasers  and  mortgagees  in  good  faith — who 
alone,  of  all  the  world,  are  charged  with  notice  by  the  filing. 

IV.  That  justice  could  not  be  done  to  the  complainant  with- 
out putting  him,  in  the  first  position,  among  the  parties  to  this 
suit,  and  allowing  him  to  be  paid  first  out  of  the  fund  in  the 
receiver's  hands. 


660         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Hoag  V.  Sayre. 
The  opiniou  of  the  court  was  delivered  by 

Beasley,  C.  J. 

I  agree  with  the  vice-chancellor  in  his  settlement  of  the  dis- 
puted facts  in  this  case,  but  it  seems  to  me  that  an  error  has 
crept  into  the  decree  with  respect  to  the  marshaling  of  the  en- 
cumbrances. These  liens  are  of  this  character :  the  mortgage 
first  in  date  is  held  by  the  appellant,  Hoag ;  then  comes  a  mort- 
gage held  by  Frederick  Fisher,  one  of  ihe  defendants,  and 
lastly  is  the  judgment  of  the  defendant  Sajre.  This  first  mort- 
gage was  not  recorded  in  the  proper  county,  and  therefore  is 
subordinate  to  the  judgment,  but  it  is  paramount  to  the  second 
mortgage,  which  was  taken  with  knowledge  of  the  existence  of 
this  first  lien.  In  this  state  of  things,  the  decree  places  the 
judgment  and  the  first  mortgage,  by  way  of  preference,  before 
the  second  mortgage.  This,  as  it  seems  to  me,  is  unjust  and 
inadmissible. 

Upon  what  possible  principle  is  the  result  in  this  case  to  be 
justified  ?  Fisher,  when  he  took  his  mortgage,  knew  that  there 
was  an  antecedent  mortgage  on  the  same  property,  securing  the 
sum  of  $2,150,  with  interest.  He  had  his  own  mortgage  duly 
recorded,  so  that  it  became  incontestably  the  second  legal  lien ; 
in  this  position  of  affairs  this  judgment  is  entered,  and  he  at 
once  finds  himself,  without  any  fault  on  his  part,  degraded  from 
the  position  of  a  second  encumbrancer  to  that  of  a  third  encum- 
brancer, and  instead  of  the  mortgaged  property  being  subject  to 
a  claim  prior  to  his  own  of  but  $2,150,  it  is  subject  to  paramount 
claims  which  amount  to  the  sum  of  $5,150.  If  such  a  principle 
be  correct,  it  does  not  appear  that  any  person,  under  any  circum- 
stances, can  take  a  second  or  other  subordinate  mortgage  upon 
property,  without  putting  his  interests  in  the  utmost  jeopardy. 
Under  the  prevalence  of  such  a  rule  of  law,  a  subsequent  encum- 
brancer would  be  obliged  to  see  that  the  statiis  of  the  primary 
encumbrance  was,  in  all  respects,  unexceptionable,  under  penalty, 
if  a  flaw  should  be  undetected,  of  having  his  lien  superseded  by 
every  judgment  that  might  be  entered  at  a  later  date.  Such  a 
rule  would  be  as  inexpedient  as  it  would  be  unjust. 


6  Stew.]  MARCH  TERM,  1881.  561 


Hoag  V.  Sayre. 


I  caunot  but  think  that  any  one  who  will  look  carefully  into 
the  subject  will  perceive  that  no  rule  applicable  to  such  a  junc- 
ture as  this  can  be  admissible  that  is  not  founded  on  the  theory 
of  leaving  the  second  mortgagee  in  the  position  originally 
acquired  by  him,  without  respect  to  the  neglects  or  shortcomings 
of  the  holder  of  the  previous  mortgage  or  the  subsequent  judg- 
ments of  creditors.  Viewed  in  this  aspect,  this  would  be  the 
result:  the  judgment  creditor  would,  in  the  marshaling  of  these 
liens,  take  priority  over  the  first  mortgage ;  as  between  the  judg- 
ment and  that  mortgage,  the  former  must  be  first  paid.  But 
with  respect  to  the  second  mortgage,  the  judgment  creditor,  as 
such,  has  no  claim  to  stand  first,  his  only  claim  in  that  regard 
being  his  right  to  stand  in  the  shoes  of  the  first  mortgagee,  and 
assert  all  the  privileges  incident  to  that  position.  But  he  can 
exact  nothing  further  than  such  privileges;  he  can  legally  say 
that  he  has  the  paramount  lien  on  the  property  to  the  extent  of 
the  sum  secured  by  the  first  mortgage ;  but  he  cannot  legally 
say  that,  with  respect  to  the  second  mortgagee,  he  has  any  para- 
mount lien  beyond  this.  No  additional  burthen  can  be  put 
upon  the  land  to  the  detriment  of  the  second  mortgagee.  If  the 
judgment  be  for  a  sum  greater  than  that  secured  by  the  first 
mortgage,  then,  by  right  of  representation,  such  judgment  will 
constitute  the  first  lien  to  the  full  extent,  and  no  further,  of  the 
first  mortgage ;  if  it  be  for  a  less  sum  than  the  first  mortgage,  it 
will  take  precedence  and  consume  the  first  mortgage  to  that 
extent  only.  It  will  be  observed  that  by  these  adjustments  the 
priority  of  the  first  mortgage,  with  regard  to  the  second  mort- 
gage, will  be  exhausted,  either  partially  or  wholly,  so  that,  to  the 
extent  of  such  exhaustion,  it  will  be  postponed  to  the  second 
mortgage. 

The  doctrine  thus  propounded  is  but  the  development  of  the 
principle  maintained  and  acted  on  in  Clement  v.  Kaighn,  2  Mc- 
Cart.  JfB.  In  that  case  there  was  a  judgment  without  an  execu- 
tion ;  then  a  mortgage,  and  then  judgments  on  which  executions 
had  been  taken  out.  These  latter  judgments  were  entitled  to 
precedence  over  the  first,  but  were  subordinate  to  the  mortgage. 
Chancellor  Green  decided  that  the  first  judgment  on  the  mort- 

36 


562         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Hoag  V.  Sayre. 

gaged  pi'emises,  by  reason  of  the  failure  to  sue  out  execution 
upon  it,  should  be  postponed  to  the  encumbrance  of  the  junior 
judgments,  and,  as  an  inevitable  consequence,  that  it  should  be 
postponed  to  the  mortgage  which  was  prior  to  the  junior  judg- 
ments, and  whose  priority  was  not  to  be  affected  by  any  laches 
of  the  holder  of  such  prior  judgment. 

In  my  opinion,  the  decree  in  this  case  should  be  modified  so  a^ 
to  direct  the  payment  of  these  encumbrances  in  this  order,  viz. : 
first,  the  judgment  of  Sayre  to  the  amount  secured  by  the  first 
mortgage;  second,  the  payment  of  the  residue  of  such  judg- 
ment and  the  second  mortgage,  pa7'i  passu,  as  they  were  concur- 
rent liens,  being  entered  on  the  same  day ;  third,  the  payment 
of  the  first  mortgage. 

Dixon,  J.  dissenting. 

I  agree  with  the  conclusions  which  the  vice-chancellor  has 
reached  upon  the  facts. 

But  I  dissent  from  the  legal  rule  by  which  he  fixes  the  order 
of  priority,  for  I  do  not  think  it  necessary  to  advance  the  com- 
plainant Sayre  to  the  front  against  everybody,  in  order  to  give 
him  the  full  benefit  of  his  superiority  to  Hoag. 

Nor  do  I  assent  to  the  rule  laid  down  in  the  opinion  just  read, 
since  I  see  no  reason  for  regarding  the  complainant  as  substituted 
in  the  stead  and  rights  of  Hoag  as  against  Fisher,  merely  be- 
cause Hoag  failed  to  comply  with  the  registry  laws.  The  effect 
of  non-compliance  with  those  laws  is  declared  by  themselves  to 
be,  not  that  the  rights  of  him  in  default  shall  be  transferred  to 
the  subsequent  encumbrancers,  but  that  his  claim  shall  be  void 
as  to  them. 

Therefore,  if  there  be  three  encumbrancers.  A,  B  and  C,  in  the 
order  of  time,  and  A's  lieu  be  prior  to  B's,  and  B's  to  C's,  but, 
for  A's  omission  to  properly  register  his  lien,  it  is  void  as  to  C's, 
then  the  fund  should  be  disposed  of  as  follows : 

1.  Deduct  from  the  whole  fund  the  amount  of  B's  lien,  and 
apply  the  balance  to  pay  C.  This  gives  C  just  what  he  would 
have  if  A  had  no  existence. 

2.  Deduct  from  the  whole  fund  the  amount  of  A's  lien,  and 


6  Stew.]  MARCH  TERM,  1881.  563 

Hoag  V.  Say  re. 

apply  the  balance  to  pay  B.  Tliis  gives  B  what  he  is  entitled 
to. 

3.  The  balance  remaining  after  these  payments  are  made  to  B 
and  C  is  to  be  applied  to  A's  lien. 

To  illustrate  :  Sup[)ose  the  fund  to  be  $5,000 ;  A's  lien  to  be 
$3,000;  B's  lieu  to  be  $4,000,  and  C's  lien  to  be  $2,000. 
Then,  C  receives  $5,000,  less  $4,000 =§1,000 ;  B  receives  $5,000, 
less  $3,000= $2,000 ;  A  receives  $5,000,  less  ($l,000+$2,000),= 
$2,000. 

Or  suppose  the  fund  to  be  $5,000,  and  each  of  these  encum- 
brances to  be  $5,000 ;  then  it  will  appear  that  A,  the  first  in 
time,  will  take  it  all ;  since,  except  for  the  registry  laws,  he 
would  clearly  be  entitled  to  it,  and  the  registry  laws  simply  pre- 
vent his  taking  anything  by  which  C's  security  may  be  lessened. 
But  C's  security  was  nothing  at  the  beginning,  for  B's  prior  lien 
covered  the  whole  fund ;  and  C,  therefore,  has  no  right  by 
which  A's  claim  can  be  impaired. 

Where  B's  and  C's  claims  are  concurrent  in  time  and  lien, 
but  A  is  prior  to  B,  and  void  as  to  C  (as  in  the  present  case), 
the  distribution  should  be  as  follows : 

1.  Divide  the  whole  fund  in  the  proportion  of  B's  and  C's 
claims,  and  give  to  C  his  proportion.  Thus  is  A  ignored  in  fix- 
ing C's  rights. 

2.  Deduct  from  the  whole  fund  the  amount  of  A's  lien,  and 
apply  the  balance  to  B's  claim. 

3.  The  balance  remaining  after  both  payments  goes  to  A. 

By  applying  these  rules  to  the  case  before  us,  it  will  be  seen 
that,  in  my  judgment,  Fisher  alone  is  injured  by  the  decree  be- 
low ;  but  as  he  is  not  a  party  to  this  appeal,  the  decree  cannot 
be  changed  here  for  his  sake,  and  therefore,  I  think,  should  be 
affirmed. 

For  affirmance — Dixon — 1. 

For  reversal — Beasley,  C.  J.,  Depue,  Knapp,  Magie, 
Parker,  Reed,  Scudder,  Van  Syckel,  Clement,  Cole, 
DoDD  Green — 12. 


564         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Van  Orden  v.  Budd. 

John  A.  Van  Oeden,  appellant,  - 

V. 

Nelson  L.  Budd,  respondent. 

Where  a  person  took  an  absolute  conveyance,  but  which  was,  in  point  of 
fact,  a  mortgage,  and  sold  the  premises  as  his  own,  repudiating  the  interest  of 
the  grantor,  and  took  a  mortgage  for  part  of  the  consideration  money — Held, 
that  it  was  not  inequitable  to  charge  him,  in  his  accounts  with  the  grantor, 
with  the  amount  of  the  money  secured  by  the  mortgage  taken  by  him,  as  so 
much  cash  in  hand. 


On  aj)peal  from  a  decree  advised  by  the  vice-chancellor,  wliose 
opinion  is  reported  in  Budd  v.  Van  Orden,  6  Stew.  Eq.  lJi3. 

Mr.  Theo.  Little,  for  appellant. 

Not  disputing  but  that  the  deed,  though  absolute  on  its  face, 
may  be  shown  by  parol  to  have  been  in  fact  intended  to  be  only 
a  mortgage,  I  submit : 

I.  That  to  so  control  and  qualify  the  plain  and  absolute  terms 
of  a  deed,  the  evidence  must  be  clear,  unequivocal  and  convincing, 
and  such  as  to  show  that  the  grantee's  claim  that  the  transaction 
was  originally  a  purchase,  is  inconsistent  with  the  subsequent 
conduct  of  both  parties,  and  such  as,  if  sustained,  will  defraud 
the  grantor  of  some  valuable  right. 

The  proof  must  go  further  than  merely  to  show  that  the 
grantee  agreed  that  the  deed  should  not  be  held  and  used  as  an 
absolute  conveyance.  If  the  grantor  executed  it,  knowing,  at  the 
time,  it  did  not  express  the  true  agreement,  he  cannot  be  relieved 
from  the  consequences  of  his  own  act.  Lord  Irnham  v.  Child, 
2  Bro.  a  a  93;  Selden  v.  3£yers,  20  How.  506;  2  Lead.  Cases 
in  Eq.  9U,  1011 ;  Clark  v.  Condit,  3  C.  E.  Gr.  359  ;  Decamp 
v.  Crane,  4.  C.  E.  Gr.  169  ;  Sweet  v.  Parker,  7  C.  E.  Gr.  J^S. 

But  the  one  element  or  ciiaracteristic  of  a  mortgage,  and  which 
distinguishes  it  from  a  deed,  is  the  agreement  for  a  defeasance. 
This  is  of  the  very  essence  of  a  mortgage,  and  unless  it  exists  in 
Bome  form,  by  agreement  between  the  parties,  the  instrument  id 


6  Stew.]  MARCH  TERM,  1881.  565 

Van  Orden  v.  Budd. 

not  a  mortgage,  1  Jones  on  Mort.  §§  16,  2Jf.l,  256,  S63 ;  2 
Cruise  Digest,  title  x,  ch.  i  §  11 ;  1  Wash.  Real  Prop.  ch.  16  § 
1 ;  Montgomery  v.  Bruere,  1  South.  S69. 

Such  agreement  for  defeasance  must  also  have  been  made  at 
the  time  the  deed  was  executed.  The  grantor  cannot  speculate 
upon  the  chances  for  depreciation  or  appreciation  of  the  property. 

1  Jones  on  Mort.  §§  256,  263;  Kearney  v.  Macomh,  1  C.  E.  Gr. 
194- ;  Youle  v.  Richards,  Sax.  537 ;  Crane  v.  Bonnell,  1  Gr.  Ch. 
265;  aarJc  v.  Condit,  3  C.  E.  Gr.  359  ;  Phillips  v.  Hulsizer,  5 
C.  E.  Gr.  308;  Judge  v.  Reese,  9  C.  E.  Gr.  390;  Melick  v. 
Creamer,  10  C.  E.  Gr.  429. 

Indeed,  so  essential  is  this  feature  of  defeasance  or  right  of 
redemption,  that  it  is  the  one  ground  on  which  the  jurisdiction 
of  the  court,  in  cases  of  this  kind,  is  declared  to  be  founded. 

2  Story  Eq.  Jur.  §§  1018,  1019;  4  Kent  Com.  1^3. 

II.  But  the  case  does  go  further,  and  shows  most  conclusively 
that  the  one  element  which  characterizes  a  mortgage  aud  distin- 
guishes it  from  an  absolute  conveyance,  is  entirely  absent — that 
is,  the  right  of  redemption  or  defeasance. 

No  resumption  or  reconveyance  was  ever  contemplated,  and 
if  not,  there  could  have  been  no  mortgage,  for  that  is  defined  to 
be  "  an  estate  defeasible  by  the  performance  of  a  condition  sub- 
sequent."    1  Wash.  Real  Property  ch.  16  §  1. 

III.  The  evidence  is  not  only  inconsistent  with  the  idea  that 
the  deed  was  intended  as  a  mortgage,  but  is  entirely  consistent 
with  the  defendant's  claim  that  it  was  intended  as  an  absolute 
sale  to  him. 

(a)  The  form  of  the  deed  is  such  as  it  would  have  been  if  a 
sale  had  been  made. 

(6)  The  condition  of  the  estate  and  of  the  complainant  were 
such  as  to  make  such  sale  desirable. 

(c)  Both  parties  subsequently  declared  it  to  be  a  sale,  and  not 
merely  a  mortgage. 

{d)  The  consideration  of  $900,  expressed  in  the  deed,  and  the 
mode  in  wliich  it  was  paid,  and  complainant's  receiving  and 
\iolding  Mr.  Van  Orden's  note  for  $400,  clearly  indicate  a  pur- 


666         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Van  Orden  v.  Biuld. 

cliase.     The  other  heirs  or  devisees  sold  their  interest  fur  about 
$1000  per  share,  and  some  for  even  a  less  amount. 

IV.  If,  however,  while  it  appears  from  the  evidence  the  deed 
was  made  as  the  parties  intended  it  should  be,  the  claim  shall 
be  set  up  by  the  complainant  that  there  was  an  agreement 
on  the  part  of  the  defendant  to  hold  it  in  trust  for  the  complain- 
ant, or  to  receive  and  hold  his  share  of  the  estate  when  it  was 
settled,  in  trust,  to  pay  the  $500  advanced  to  him,  and  the  re- 
mainder, after  payment  of  his  notes,  in  trust  for  him,  it  is  such 
an  agreement  as  cannot  be  sustained.  It  is  clearly  within  the 
statute  of  frauds.  Hutchinson  v.  Tindal,  2  Gr.  Ch.  362 ;  Eaton 
V.  Eaton,  6  TV.  S92 ;  Baldwin  v.  Chmpjield,  4.  Hal.  Ch.  894, 
900,  904.;  Whyte  v.  Arthur,  2  C.  E.  Gr.  523;  Servis  v.  Nelson, 
1  McCart.  100 ;  Hogan  v.  Jaques,  4  C.  E.  Gr.  126 ;  Brown 
ads.  Combs,  5  Butch.  39;  1  Lead.  Cases  in  Eq.  351,  356,  369, 
1013,  1014;  Brown  on  Stat,  of  Frauds,  ch.  xix.,  §§  4£7,  44^; 
FuUar  V.  Hood,  10  Casey  365  ;  Lamhorn  v.  Watson,  6  Harr. 
&  Johns.  252. 

V.  If  the  evidence  should  be  held  to  warrant  the  decree  that 
this  deed  was  intended  to  be  only  a  mortgage,  the  rule  adopted 
by  the  vice-chancellor,  in  stating  the  account  between  the  parties, 
■was  inequitable  and  unjust.  Kearney  v.  Macomb,  1  C.  E.  Gi\ 
194;  1  Jones  on  Mort.  §§  256,  263. 

Mr.  Jos.  Coidt,  for  respondent. 

I.  The  conveyance  made  by  Nelson  L.  Budd  and  wife,  the 
respondent,  to  John  A.  Van  Orden,  the  appellant,  was  made  as 
security  for  a  loan  of  money  by  way  of  mortgage,  and  was  not 
an  absolute  conveyance.     It  was  properly  held  to  be  a  mortgage. 

II.  The  appellant  having  sold  the  property  pledged,  without 
the  assent  of  the  respondent,  the  appellant  should  account  to  him 
for  the  sum  for  which  he  sold  it,  and  not  for  its  supposed  actual 
value.  He  became  trustee  for  the  mortgagor.  Perry  on  Trusts 
§  4^1  and  Baldwin  v.  Bannister,  note ;  Robinson  v.  Pettit,  4  P- 
Wins.  251 ;  Cornell  v.  Pierson,  4  Hal.  Ch.  4'^^  ;  Jones  on  Mort. 
§  341 ;  Meham  v.  Foirster,  52  N.  Y.  277. 


6  Stew.]  MARCH  TERM,  1881.  567 

Van  Orden  v.  Budd. 

III.  The  appellant  lost  his  right  to  object  to  the  master's  re- 
port by  failure  to  file  his  exceptions ;  set  down  the  cause  for  hear- 
ing, aud  give  notice  thereof,  within  the  time  limited  in  the  rule 
nisi.     They  were   properly  stricken  from   the  files.      Weber  v. 

Wdtling,  3  C.  E.  Gh'.  39;  3Iorris  v.  Taylor,  8  C.  E.  Gr,  13 J^. 

IV.  The  appellant,  by  the  master's  report  and  final  decree,  is 
allowed  more  than  in  equity  he  ought  to  be  credited  with,  and 
the  amount  for  which  he  should  account  is  greater  than  the 
amount  decreed  to  be  due. 

The  opinion  of  the  court  was  delivered  by 

Beasley,  C.  J. 

The  complainant  in  this  case,  who  is  the  respondent  in  this 
appeal,  made  a  conveyance  in  fee  of  certain  lands  to  the  appel- 
lant, and  the  purpose  of  the  bill  was  to  have  such  absolute  deed 
declared  to  be  a  mortgage.  In  this  endeavor  he  was  successful 
in  the  court  below.  The  point  depended  on  the  effect  of  the 
parol  evidence,  and  as  such  evidence  has  been  fully  discussed  in 
the  opinion  read  in  the  court  below  by  the  vice-chancellor,  and 
as  I  agree  in  the  views  expressed  by  him  in  this  respect,  it  would 
be  but  a  waste  of  time  for  me,  at  this  time,  to  pass  over  that 
same  ground.  I  concur  in  the  conclusion  thus  reached,  that  the 
deed  in  question  was  designed  by  the  parties  to  it  to  stand,  in 
substance,  as  a  security  for  the  amount  of  money  advanced  by 
the  appellant  to  the  complainant,  at  the  time  of  its  execution. 

The  only  misgiving  that  I  have  experienced,  touching  the 
correctness  of  the  decree,  has  been  with  respect  to  the  propriety 
of  charging  the  appellant  with  the  share  of  the  complainant  in 
the  proceeds  of  the  land  sold,  on  the  basis  of  the  price  obtained 
at  such  sale.  The  embarrassment  is  that  the  whole  of  such 
price  has  not  yet  come  to  the  hands  of  the  appellant,  as  he  took, 
in  part  payment  on  such  sale,  a  bond  and  mortgage  for  a  certain 
portion  of  the  consideration  money,  and  it  is  now  contended,  in 
his  behalf,  that  it  is  incompatible  with  correct  principle,  looking 
at  the  case  as  one  between  trustee  and  de&tui  que  trust,  or  priuci- 


568        COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Van  Orden  v.  Budd. 

pal  and  agent,  to  charge  against  him,  as  so  much  cash,  those 
moneys  included  in  the  mortgage  wliich  have  not  as  yet  been 
received  by  him.  The  argument  is  that  such  moneys  may  be 
ultimately  lost  without  any  fault  on  his  part,  and  thus  a  liability 
to  his  principal  may  never  arise. 

There  is,  certainly,  some  force  in  this  view,  and  it  would  be 
entitled  to  prevail  if  the  facts  of  the  case  presented  these  parties 
as  standing  towards  each  other  in  the  attitude,  under  usual  con- 
ditions, of  trustee  and  cestui  que  trust,  or  of  a  similar  relation- 
ship. According  to  the  view  above  taken  on  the  merits,  the 
appellant  was  the  holder  of  the  complainant's  undivided  share 
in  these  lands  as  mortgagee,  with  an  authority  to  sell  such  share, 
rendering  an  account  to  the  complainant  for  its  product ;  and  if, 
in  good  faith,  he  had  proceeded  to  execute  such  authority,  in 
behalf  of  his  principal,  there  can  be  no  question  as  to  his  right 
to  have  his  accounts  settled  in  the  manner  which  the  law  pre- 
scribes for  such  cases.  But  the  facts  show  that  the  appellant 
cannot  be  permitted  to  claim  the  utmost  advantage  of  such  a 
position  as  this.  By  his  own  showing,  in  selling  this  land,  he 
did  not  intend  to  act  as  the  agent  or  trustee  of  the  complainant, 
but,  disowning  that  character,  and  asserting  his  own  absolute 
right  to  the  land,  he  made  sale  of  it  as  owner,  and  acted  In  that 
matter  for  himself  alone.  Having  repudiated  his  representative 
capacity  in  disposing  of  the  premises,  the  claim  which  he  makes 
to  such  capacity,  when  his  accounts  are  to  be  adjusted,  cannot  be 
considered  as  very  forcible.  Dealing  with  the  property  as  his 
own,  he  took  this  bond  and  mortgage  in  his  own  right,  as  so 
much  cash.  It  is  not  shown  that  the  moneys  so  received  cannot 
be  collected,  or  are  in  danger  of  being  lost.  The  price  produced 
at  this  sale  may,  I  think,  in  view  of  all  tlie  evidence,  be  taken  as 
representing  the  fair  value  of  the  land  sold.  In  this  position  of 
things,  it  does  not  seem  to  me  to  be  inequitable,  or  abnormal,  to 
charge  the  appellant,  in  his  settlement  with  the  complainant, 
with  the  entire  amount  of  such  price  as  so  much  cash  in  his 
hands. 

This  conclusion  leads  me  to  vote  for  the  affirmance,  in  all 
respects,  of  the  decree  appealed  from. 

Decree  unanimously  affirmed. 


6  Stew.]  MARCH  TERM,  1881.  569 


Davis  V.  Sullivan. 


William  H.  Davis,  assignee  of  Norris,  appellant, 

V. 

Nahum  Sullivan  et  al.,  respondents. 

1.  A  defendant  in  a  chancery  suit  being  decreed  a  bankrupt  between  a  decree 
pro  confesso  and  a  final  decree,  does  not  abate  or  stay  the  proceedings. 

2.  A  party  who,  having  acquired  an  interest  during  the  pendency  of  the  suit, 
applies,  under  the  chancery  act,  to  be  made  a  party  in  order  to  move  to  open 
the  decree,  must  present,  in  his  petition,  a  case  of  substantial  equity. 

3.  Claiming  in  the  court  below  the  right  to  be  let  in  as  a  party  for  a  specified 
purpose,  he  cannot  object,  on  appeal,  to  the  order  refusing  his  admission,  that 
he  had  the  right  to  be  joined  to  the  suit  for  another  purpose. 


On  appeal  from  an  order  of  the  chancellor,  refusing  to  open  a 
final  decree  in  order  to  let  in  the  appellant  to  answer  and  defend. 

Edward  T.  Norris  transferred  to  a  trustee  certain  promissory 
notes  for  the  payment  of  certain  enumerated  creditors.  Such 
transfer  was  conditional  on  all  the  enumerated  creditors  coming 
in  and  accepting  it.  Some  time  after  such  transfer  and  delivery 
of  such  notes  to  the  trustee,  and  after  a  large  number  of  such 
creditors  had  accepted  the  offer,  Norris  notified  the  trustee  that 
he  had  revoked  such  assignment  and  trust.  A  bill  was  then 
filed  by  some  of  the  creditors  who  had  come  in  against  Norris  and 
the  trustee,  making  the  rest  of  the  enumerated  creditors  parties, 
to  have  the  trust  executed,  and  setting  up,  in  avoidance  of  the 
above-mentioned  revocation,  that  the  said  Norris  had  under- 
taken to  procure  the  assent  of  the  rest  of  the  creditors,  and  that 
if  he  had  not  procured  such  assent,  he  had  acted  in  bad  faith. 
To  this  bill  Norris  did  not  appear,  and  an  order  for  a  decree  pro 
confesso  having  been  taken,  in  the  end  a  final  decree  was  entered 
against  him  and  the  trust  was  directed  to  be  carried  into  effect. 
Subsequent  to  this  final  decree,  and  after  the  moneys,  in  a  great^ 
part,  had  been  distributee!,  one  William  H.  Davis,  assignee  in 
bankruptcy  of  the  said  Edward  T.  Norris,  presented  his  peti- 


570         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 


Davis  V.  Sullivan. 


tion  to  open  the  said  decree  and  to  let  him  iu  to  defend,  set- 
ting forth,  as  the  grounds  of  his  application,  that  lie  had  been 
appointed  such  assignee  during  the  pendency  of  the  suit,  and 
between  the  decree  pro  confesso  and  the  final  decree ;  that  witii- 
out  notice  to  petitioner,  the  complainants,  "  by  the  consent  and 
collusion  of  the  said  bankrupt,"  had  taken  a  decree  without  noti- 
fying the  court  that  such  debtor  had  been  declared  a  bankrupt, 
and  that  said  petitioner  had,  as  his  assignee,  demanded  of  the 
assignee  the  trust  fund ;  that  the  trust  settlement  was  a  unilateral 
agreement  and  had  been  revoked. 

The  chancellor  refused,  on  this  petition,  to  make  the  assignee  a 
party,  and  to  open  the  decree  to  let  him  in  to  answer  &c. 

Mr.  Gilbert  Collins,  for  petitioner. 

In  this  case,  application  (by  petition  filed  after  decree)  was 
made  by  the  assignee  in  bankruptcy  of  a  defendant  in  a  chancery 
suit,  first,  that  he  might  be  admitted  as  a  party  to  the  suit ;  and 
second,  that  the  decree  might  be  opened,  and  he,  permitted  to 
defend.  The  bankrupt  had  not  answered,  and  the  decree,  as  to 
him,  was  pro  confesso. 

This  application,  and  every  part  thereof,  the  chancellor  denied. 
From  his  denial  this  appeal  was  taken. 

I.  The  chancellor  should  at  least  have  admitted  the  assignee 
as  a  party.  Eyster  v.  Gaff,  1  Otto  521 ;  Rev.  Ill  §  ^  ;  Rev. 
125,  §  llJf.;  S  Dan.  Ch.  Prac.  U60,  U61,  and  notes. 

II.  The  chancellor  should  have  opened  the  decree  and  permit- 
ted the  assignee  to  defend. 

III.  There  has  been  no  laches  on  the  part  of  the  assignee. 

Mr.  J.  D.  Bedle,  for  respondents. 

If  Davis,  as  assignee,  desired  to  be  made  a  party,  it  was  his 
business  to  apply,  and  not  the  duty  of  the  complainants  to  make 
"him  a  party.  Eyster  v.  Gaff,  1  Otto  521 ;  Esterhrook  v.  Ahem, 
4-  Stew.  Eq.  4' 


6  Stew.]  MARCH  TERM,  1881.  571 

Davis  V.  Sullivan. 

It  is  questionable  whether  an  assignee  pendente  lite  could  be 
made  a  party,  if  he  does  not  apply  or  consent.  Norton  v.  Swit- 
zer,  S  Otto  360. 

II.  Under  our  statute  [Rev.  110,  §  ^i),  if  the  assignee  could 
be  admitted,  he  would  only  stand  in  place  of  the  defendant  Nor- 
ris,  and  would  be  entitled,  as  defendant,  to  no  other  rights  than 
Norris.     Guest  v.  Hewitt,  12  C.  E.  Gr.  4^0. 

This,  also,  is  so  under  the  bankrupt  act.  Rev.  Stat.  U.  S. 
1876,  §  6O4.7. 

Norris  is  concluded  by  decree  pro  confesso  and  final  decree. 

III.  Laches.  Decree  executed.  The  trustee  obeyed  the 
decree  in  good  faith. 

IV.  There  is  no  equity  in  the  application.  By  no  possibility 
is  there  anything  to  be  reached  but  $657.83,  and  Davis  has  no 
equity  to  that.     Besides,  it  could  only  be  claimed  by  bill. 

The  application  must  show  a  right  to  be  made  a  party. 
Gunther  v.  Greenfield,  3  Bank.  Beg.  179. 

V.  The  district  court  of  the  United  States  for  New  Jersey,  in 
which  Davis  was  appointed  assignee,  Nixon,  J.,  decided  July 
17th,  1879,  that  the  sale  from  Norris  to  Clerihew  was  valid 
against  a  judgment  creditor.     Howai'd  v.  Clerihew  and  Norris. 

VI.  The  transfer  of  the  notes  was  to  pay  certain  bona  fide 
creditors,  and  its  good  faith  is  not  questioned  in  tliis  application. 
The  assignee  seeks  only  to  defend  under  Norris,  and  to  set  up 
his  defence. 

VII.  The  assignee  must  file  his  original  bill  if  he  claims  relief 
in  behalf  of  any  creditor,  showing  his  grounds,  and  giving  an 
opportunity  of  answer  and  defence,  but  we  deny,  in  fact  and  in 
law,  any  right  to  relief.  The  nature  of  the  claim,  its  genuineness, 
when  contracted,  how  held,  and  the  standing  of  the  holder  to 
attack  the  transfer,  are  all  controvertible. 

VIII.  This  transfer  is  dated  October  5th,  1876.  The  petition 
in  bankruptcy  was  filed  August  28th,  1878,  nearly  two  years 
afterwards.  The  transfer  is  not  void  by  reason  of  being  within 
the  periods  of  the  bankrupt  act,  which  avoids  transfers  in  fraud 


572         COUET  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Davis  V.  Sullivan. 

of  it.  Eev.  Stat.  U.  S.  {1S75)  §§  51'2S,  5129.  These  periods 
were  four  months  and  six  months,  afterwards  changed  to  two 
and  three  months.  Act  June  22d,  1874,  18  Stat.  1880  eh.  390 
%10. 

But  if  within  the  period,  there  must  have  been  acti:;/l  fraud. 
Tiffany  v.  Lucas,  15  Wall.  4-10. 

The  policy  of  the  bankrupt  act  has  not  beeu  to  disiarb  tl^.ns- 
fers  preceding  the  periods  mentioned,  and  if  the  assignee  v;ould 
attack  a  transfer  beyond  those  periods  as  against  our  statute  of 
frauds,  he  could,  I  submit,  only  do  it  through  a  judc^  neri  credi- 
tor, and  not  a  general  creditor.  In  re  Collins,  12  N.  B.  R.  379, 
Hunt,  J. 

The  opinion  of  the  court  was  delivered  by 

Beasley,  C.  J. 

This  is  an  application  to  admit  a  person  as  a  defendant  to  a 
suit  in  chancery  on  the  ground  that  he  obtained  an  interest  in  the 
subject  of  litigation  during  the  pendency  of  the  proceedings.  This 
petitioner  became  assignee  in  bankruptcy  of  one  of  the  principal 
defendants  in  the  suit,  the  object  of  the  bill  being  to  distribute  a 
part  of  the  property  of  such  party  among  a  certain  class  of  credit- 
ors, for  whose  benefit  it  had  been  put  in  trust.  This  decree  of 
bankruptcy,  which  vested  the  property  and  rights  of  the  bank- 
rupt in  his  assignee,  was  taken  between  the  entering  of  the  decree 
pro  confesso  and  the  final  decree  against  the  bankrupt. 

It  is  not  pretended  that  the  bankrujitcy  of  this  defendant 
operated  as  an  abatement  of  this  suit.  It  is  true,  that  the  general 
rule  is  that  where  an  interest  in  the  subject  of  the  suit  is  obtained 
pendente  lite  by  a  stranger  to  such  suit,  through  the  force  of  gen- 
eral laws,  such  as  assignments  in  bankruptcy  and  insolvent  acts, 
such  stranger  must  be  joined  as  a  party  before  the  proceedings 
can  be  carried  further.  The  distinc'tion  is  between  cases  of 
voluntary  alienation  and  cases  of  involuntary  alienation  ;  in  the 
latter  class  of  cases,  the  assignee  must  be  made  a  party ;  in  the 
former,  he  may  or  may  not,  at  the  pleasure  of  the  complainant. 
Story's  Eq.  PI.  §  SJfS'    In  Eyster  v.  Gaf,  1  Otto  521,  this  dis- 


6  Stew.]  MARCH  TERM,  1881.  573 

Davis  V.  Sullivan. 

tiuction  appears  to  have  escaped  attention,  for  in  it  all  assign- 
ments pe7idente  lite  are  put  on  a  level,  and  on  that  broad  ground 
it  is  settled  than  an  assignee  in  bankruptcy,  becoming  such  after 
the  commencement  of  a  suit,  need  not,  of  necessity,  be  joined  as  a 
party.  In  Cleveland  v.  Boerum,  2^  N.  Y.  613,  a  similar  result 
is  reached,  but,  as  it  seems  to  me,  ou  far  more  scientific  grounds, 
it  being  in  that  case  held  that,  as  by  force  of  the  law  of  the 
United  States,  an  assignee  in  bankruptcy  can  carry  on  the  suit 
in  the  name  of  the  bankrupt,  when  it  appears  that  he  is  aware 
of  the  pendency  of  a  suit,  his  non-intervention  in  his  own  name 
raises  an  implication  that  he  has  elected  to  waive  his  defence  and 
to  let  the  j)roceedings  go  to  judgment  in  the  name  of  the  bank- 
rupt. At  all  events,  it  must  be  considered  as  settled  that  a  suit 
is  not  abated  or  stayed  by  a  defendant  to  such  suit  being  decreed 
a  bankrupt  during  its  progress,  and  that  the  assignee  in  bank- 
ruptcy will  be  bound  by  the  subsequent  proceedings  in  such  suit. 
This  is  the  doctrine  not  only  of  the  eases  cited,  but  also  of  Ester- 
brook  Co.  V.  Ahem,  4-  Stev\  Eq.  3. 

But  while  the  foregoing  doctrine  is  admitted,  it  is  insisted  in 
the  present  case  that  this  assignee  has  a  right  to  be  made  a  party 
to  this  proceeding  by  force  of  the  forty-first  section  of  the  chan- 
cery act.  That  provision  is  to  the  effect  that,  on  verified  petitions, 
persons  who  have  acquired  an  interest  after  the  inception  of  a 
suit,  may  be  let  in  as  parties.  In  construing  this  enactment  in 
Guest  V.  Hewitt,  12  C.  E.  Or.  ^75,  this  court  decided,  in  sub- 
stance, that  a  petitioner  under  it  must  show  that  he  would  be 
advantaged  by  being  made  a  party  in  respect  to  the  matter  touch- 
ing which  he  seeks  to  intervene.  In  the  reported  case,  there  had 
been  a  final  decree,  and  the  chancellor  had  refused  to  admit  the 
petitioner  as  a  party,  and  that  decision  was  sustained  on  appeal, 
for  the  reason  that  although  the  petitioner  asked  to  be  made  a 
party  so  that  he  might  have  the  final  decree  opened,  he  had  laid 
no  ground  in  his  petition  that  could  have  justified  such  a  course. 
And  herein  I  find  the  defect  of  the  present  application.  There 
are  no  sufficient  grounds  suggested  or  shown  for  opening  the 
final  decree  in  this  case.  We  have  seen  that  it  is  settled  that 
the  non-joinder  of  the  petitioner  as  assignee  in  bankruptcy  is  not 


574         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

In  matter  of  will  of  Lucy  H.  Eddy. 

even  an  irregularity,  and  tlie  fact  that  the  trust  in  litigation  was 
revoked,  is  of  no  force,  as  such  fact  was  stated  in  the  bill  and  its 
effect  obviated  by  the  statement  of  alleged  contervailing  equities. 
It  does  not  seem  to  me  that  the  case  presented  in  this  petition 
gives  rise  to  even  a  coloi'able  equity  as  against  a  result  in  a  suit 
attained  by  the  usual  methods  and  in  due  course. 

With  respect  to  the  suggestion,  made  here  apparently  for  the 
first  time,  that  this  petitioner  should  have  been  admitted,  so  as 
to  enable  him  to  appeal,  if  he  so  desired,  from  the  final  decree, 
to  this  court,  the  conclusive  answer  is,  that  his  petition  assigns 
no  such  purpose.  If  he  had  suggested  such  a  design,  it  is  proba- 
ble that  his  application  would  have  been  granted  by  the  chancel- 
lor. Whether  he  could  have  sustained  an  appeal  in  the  face  of 
a  final  decree  founded  on  a  decree  pro  confesso,  is  a  question  not 
now  before  this  court  for  decision. 

The  decree  of  the  chancellor  should  be  affirmed. 

Decree  unanimously  affirmed. 


In  the  matter  of  the  last  will  of  Lucy  H.  Eddy. 

In  an  exceptional  case,  when  strong  and  well-founded  doabts  exist  as  to  the 
mental  capacity  of  a  testatrix,  and  with  respect  to  the  force  and  character  of 
the  influence  under  which  the  testamentary  act  was  performed,  the  caveators 
are  entitled  to  their  costs  and  reasonable  counsel  fees. 


On  appeal  from  a  decree  of  the  ordinary  reported  in  Eddy's 
Case,  5  Stew.  Eq.  701. 

Mr.  W.  H.  Vredenburgh  and  3Ir.  B.  Williamson,  for  appellants. 

This  is  the  resistance  of  Mrs.  Louisa  Pollock  the  great-nieoe 
and  the  heir  at  law  of  Lucy  Eddy,  to  the  probate  of  a  paper 
claimed  to  be  her  will,  and  dated  January  19th,  1875.    The  tes- 


6  Stew.]  MARCH  TERM,  1881.  575 

In  matter  of  will  of  Lucy  H.  Eddy. 

tatrix  was  a  single  woman,  and  died  in  1879.  She  was  eighty- 
three  years  of  age  at  the  making  of  this  paper.  Her  possessions 
in  1875  were  valued  at  over  ^200,000.  A  Miss  Chapman,  a 
single  woman  over  forty  years  of  age,  and  very  remotely 
related  to  testatrix,  obtained  from  her,  by  conveyance,  shortly 
before  the  death  of  testatrix,  property  which  cost  oyer  $45,000, 
and  by  the  will  in  question,  about  $40,000  more,  making  about 
$85,000. 

Mrs.  Pollock  and  her  brother  are  given  by  this  paper,  through 
trustees,  the  joint  use,  for  life,  of  a  store  property  in  New  York. 
The  value,  in  1875,  of  Mrs.  Pollock's  share  for  life  was  not  over 
$13,000.  By  the  former  wills  of  testatrix  of  1861  and  1867 
(while  that  store  property  had  constituted  a  large  proportion  of 
the  property  of  testatrix),  she  had  given  that  property  absolutely 
in  fee  to  Mrs.  Pollock  and  her  brother.  Afterward,  there  was  a 
very  rapid  increase  of  the  estate  of  testatrix.  Noth withstanding 
this  great  increase  in  her  estate,  and  notwithstanding  the  great 
love  that  testatrix  really  had  for  Mrs.  Pollock,  this  will  of  1875 
devised  only  the  store  property  in  trust  for  Mrs.  Pollock  and  her 
brother,  for  life,  with  remainder  to  the  trustees  of  the  Rahway 
Library  Association,  thus  restraining  its  alienation  and  stripping 
it  of  its  real  value  to  Mrs.  Pollock.  This  strange  action,  we 
charge,  arose  from  three  causes  : 

I.  A  loss  of  mind  and  memory  on  the  part  of  testatrix  of 
sufficient  extent  to  incapacitate  her  from  duly  retaining  in  her 
memory  the  object  of  her  bounty  and  affection. 

II.  Such  enfeebled  mind  as  existed  in  testatrix,  was  guided  to 
that  act,  and  led  to  forget  and  to  become  estranged  from  her 
niece  by  the  superior  will  and  management  of  Miss  Chapman, 
who  excluded  Mrs.  Pollock  and  her  friends  from  the  society  and 
companionship  of  testatrix,  from  motives  of  self-interest  and 
malice  towards  Mrs.  Pollock  and  her  husband. 

III.  Testatrix  was  induced  by  Miss  Chapman  to  believe  un- 
founded imputations  against  caveator's  husband. 

These  positions  are  fully  sustained  by  the  evidence  in  this 
cause.     A  word  upon  the  law  of  capacity. 


576         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

In  matter  of  will  of  Lucy  H.  Eddy. 

I.  The  approved  definition  of  Judge  Washington  in  Doi  v.  Van 
Cleve,  as  to  a  disposing  memory,  was  as  follows,  viz. :  "  Was  he 
capable  of  recollecting  the  property  he  was  about  to  bequeath, 
the  manner  of  distributing  it,  and  the  objects  of  his  bounty  ?" 
Testatrix's  capacity  will  not  be  found  to  stand  the  test.  But  the 
most  satisfactory  test  of  testamentary  capacity  is  the  capability  to 
transact  business  with  sagacity  and  decision.  Gleespin's  Will,  11 
a  E.  Gr.  623  ;  Turner  v.  Hand,  3  Wall.  Jr.  88;  Harrison  v. 
Rowan,  3  Wash.  C.  C.  586 ;  Stevens  v.  Van  Cleve,  4-  Wash.  C.  C. 
262,  268  ;  Lynch  v.  Clements,  9  C.  E.  Gr.  431. 

II.  Red  field  ( Vol.  I.  p.  510,  §  2,  and  note)  says  on  this  subject 
that  any  important  abuse  of  testatrix's  confidence  in  making  her 
believe  unfounded  imputations  against  those  entitled  to  her 
bounty,  is  fraudulent,  and  avoids  the  will  that  reflects  it.  Diet- 
rich V.  Dietrich,  6  8.  &  R.  207 ;  Nursear  v.  Arnod,  13  8.  &  R. 
323  ;  Patterson  v.   Patterson,  6  8.  &  R.  56 ;  Feardon's  Case,  5 

Ves.  633. 

III.  As  has  been  stated,  Miss  Chapman's  object  was  two-fold, 
one  to  prejudice  testatrix  against  the  Pollocks  so  as  to  reduce  Mrs. 
Pollock's  claims,  the  other  to  make  sure  for  herself  of  the  bounty 
of  testatrix.  Testatrix  was  an  easy  dupe  to  the  calumnies  against 
husband  of  caveator.  If  so,  the  will  should  not  stand.  See 
Redf.  on  Wills  516;  Clark  v.  Fisher,  1  Paige  171. 

Mr.  B.  A.  Vail  and  3Ir.  J.  Henry  8tone,  for  respondents. 

I.  The  formal  execution  of  a  will  having  been  proved,  sanity 
is  presumed,  and  the  burden  of  proof  then  shifts  to  caveators. 
Harrison  v.  Rowan,  3  Wash.  C.  C.  680 ;  Nelson  v.  McGiffert,  3 
Barb.  Ch.  158 ;  Jauncey  v.  Thome,  2  Barb.  Ch.  Jfi  ;  Peebles  v. 
Case,  2  Br  adj.  226 ;  Turner  v.  Cheeseman,  2  McCart.  245; 
Whitenack  v.  Stryker,  1   Gr.   Ch.  11  ;  Allaire  v.  Allaire,  8  Vr. 

312;  Redf.  Am.  Cas.  on  Wills  29,  30,  and  cases  cited. 

II.  Testamentary  capacity  is  not  a  question  of  age,  simple 
impairment  of  memory  or  bodily  infirmity,  but  of  understand- 
ing.    If  one  understands  the  business  he  is  engaged  in,  recollects 


6  Stew.]  MARCH  TERM,  1881.  577 

In  matter  of  will  of  Lucy  H.  Eddy. 

his  property,  those  whom  he  desires  to  be  the  objects  of  his 
bounty,  and  the  manner  in  which  his  ])roperty  is  to  be  dis- 
tributed, he  has  the  full  measure  of  capacity  required  to  make  a 
valid  will.  Harrison  v.  Rowan,  3  Wash.  C.  C.  587  ;  Stevens  v. 
Van  Cleve,  4,  Wash.  C.  C.  S62 ;  Van  AM  v.  Hunter,  5  Johns. 
Ch.  14.8;  Stewart's  Exrs.  v.  Lispenard,  26  Wend.  255 ;  Potts  v. 
House,  6  Ga.  32 4 ;  Cordrey  v.  Cordrey,  1  Houst.  {Del.)  269  ; 
Kinne  v.  Kinne,  9  Conn.  102  ;  Stachhouse  v.  Horton,  2  McCart. 
202;  In  re  Hcmphrey's  Will,  11  C.  E.  Or.  513;  S.  C.  affirmed, 
12  a  E.  Gr.  567 ;  In  re  Wintermute's  Will,  12  C.  E.  Gr.  U'^ ; 
S.  C.  affirmed,  1  Stew.  Eq.  If37  ;  Harris  v.  Betson,  1  Stew.  Eq. 
211 ;  Clark  v.  Fisher,  1  Paige  171 ;  Den  v.  Trumhxdl,  2  Zah. 
133 ;  Den  v.  Johnson,  2  South.  45^;  S.  F.  Soc.  v.  Hopper,  33 
N.  Y.  619;  Thompson  v.  Keyser,  65  Pa.  St.  368. 

III.  To  prove  testamentary  capacity,  opinions  of  witnesses 
based  upon  facts  within  their  knowledge  are  competent.  Dun- 
ham's App.,  27  Conn.  192. 

And  unprofessional  opinions  of  old  friends  are  more  valuable 
than  opinions  of  experts  of  recent  acquaintance.  Brooke  v. 
Tovmsmd,  7  Gill  10. 

IV.  Where  caveators  attempt  to  defeat  a  will  on  the  ground 
of  undue  influence,  the  burden  of  proof  is  cast  upon  them. 
Undue  influence  will  not  be  presumed.  Baldwin  v.  Parker,  99 
Mass.  79  ;  Small  v.  Small,  4-  Greenl.  224  >'  Boyse  v.  Rosshorough, 
6  H.  ofL.  Cas.  2;  Tyler  v.  Gardiner,  35  N.  Y.  559. 

V.  To  establish  the  presence  of  undue  influence,  there  must 
be  shown,  as  present  and  operating  at  date  of  will — 

(rt)  Importunity  incapable  of  being  resisted,  by  reason  of 
weakness. 

(6)  Importunity  harassing  the  testator  into  submission. 
(e)  Importunity  yielded  to  for  the  sake  of  peace. 

(d)  Physical  restraint  or  coercion. 

(e)  Threats. 

(/)  False  statements. 

37 


678         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

In  matter  of  will  of  Lucy  H.  Eddy. 

The  influence  of  affection,  of  kind  offices,  or  even  of  decent 
persuasion,  will  not  invalidate  a  will.  Influence,  to  be  undue, 
must  be  a  fraudulent  one,  controlling  the  will,  and  destroying  free 
agency.  Marshall  v.  Flinn,  4-  Jones  {N.  C.)  199 ;  Eckert  v. 
Flowry,  JtS  Pa.  St.  4.6;  ElUoWs  Will,  2  J.  J.  Marsh.  SJfi ; 
Lynch  v.  Clements,  9  C.  E.  Gr.  1^4. 

The  opinion  of  the  court  was  delivered  by 

Beasley,  C.  J. 

With  respect  to  the  principal  feature  of  this  litigation,  I  agree 
with  the  views  expressed  by  the  chancellor,  to  the  effect  that  the 
writings  propounded  should  be  admitted  to  probate. 

But,  upon  a  careful  consideration  of  the  facts  of  the  case,  I 
have  been  led  to  the  conclusion  that  there  should  be  a  modifica- 
tion of  the  decree,  so  far  as  to  allow  costs  and  counsel  fees  to  the 
contestants.  The  case,  I  think,  is  an  exceptionally  strong  one 
on  the  side  of  the  caveators.  It  would  serve  no  useful  purpose 
to  discuss  the  evidence,  or  even  to  sketch  the  case  in  outline;  it 
is  enough  to  say  that  the  circumstances  were  such  as  necessarily 
to  excite  well-founded  doubts  as  to  the  mental  capacity  of  the 
testatrix,  and  as  to  the  force  and  character  of  the  influence  under 
which  the  testamentary  act  in  question  was  performed,  and  that, 
therefore,  there  was  plainly  reasonable  cause  for  the  investigation 
induced  at  the  instance  of  these  caveators.  Therefore,  in  my 
opinion,  as  I  have  said,  their  counsel  fees  and  costs  should  be 
given  to  them  out  of  the  estate. 

With  respect  to  the  amount  of  allowance :  The  investigation 
was  necessarily  protracted,  and  related  to  a  subject  of  importance. 
I  think  that  $2,500  should  be  allowed  for  the  services  of  counsel 
in  both  courts,  together  with  the  costs  of  the  caveators  in  each 
court. 

The  decree  should  be  reversed,  in  order  to  be  modified  in  these 
respects. 

For  affirmance — Depue,  Magie,  Reed,  Van  Syckel, 
Green — 5. 


6  Stew.]  MARCH  TERM,  1881.  579 


Davis  y.  Clark. 


For  reversal — Beasley,  C.  J.,  Dixox,  Knapp,  Parker, 
ScuDDER,  Clement — 6. 


Thomas  W.  Davis,  appellant, 


Jacob  F.  Clark,  respondent. 

1.  The  vendee  of  land  cannot  claim,  in  a  foreclosure  suit,  a  deduction  from 
the  mortgage-money,  on  the  ground  that  his  vendor,  who  was  not  the  mort- 
gagor, misstated  the  number  of  acres  of  the  land  conveyed,  and  that  the  ven- 
dor of  such  vendor,  who  was  the  mortgagee  and  complainant,  when  he  sold 
such  lands,  made  a  similar  misstatement. 

2.  To  authorize  such  deductions,  the  mortgagee  and  the  owner  must  be 
privies  in  contract. 

3.  A  sold  a  farm  to  B,  misstating  the  number  of  acres,  taking  a  mortgage  for 
pai-t  of  consideration.  B  sold,  making  a  similar  misstatement,  to  C  who  as- 
sumed payment  of  the  mortgage. — Held,  on  a  foreclosure  by  A,  that  C,  could 
not  set  up  these  facts  in  order  to  offset  his  damages  against  the  mortgage. 

On  appeal  from  a  decree  of  the  chancellor,  reported  in  Clark 
V.  Davis,  5  Stew.  Eq.  530. 

Mr.  P.  L.  Voorhees  and  Mri  James  Wilson,  for  appellant. 

I.  The  mortgage  sought  to  be  foreclosed  in  this  case  is  for 
part  of  the  purcliase-money  of  the  mortgaged  premises,  con- 
veyed by  the  respondent  as  a  farm  containing  two  hundred  and 
forty-four  acres,  when  in  fact,  and  as  it  was  afterwards  discov- 
ered and  ascertained,  it  only  contained  about  two  hundred  and 
twenty-two  acres. 

II.  The  appellant  is  entitled  to  relief  in  this  case  on  the 
answer  filed  by  him,  without  filing  a  cross-bill.  O'Brien  v.  Hul- 
fah,  7  a  E.  Gr.  473,  476,  477;  Dayton  v.  Mdick,  12  C.  E. 
Gr.  362,  5  Stew.  Eq.  570. 


580         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Davis  V.  Clark. 

III.  The  appellant  is  entitled  to  the  defence  set  up  in  his 
answer,  and  to  have  the  mortgage  debt  of  the  respondent  re- 
duced ])roportionate  to  the  difference  between  the  contents  of  the 
mortgaged  premises,  as  represented  at  the  time  of  the  convey- 
ance by  the  respondent,  and  the  true  and  actual  contents  thereof, 
as  afterwards  ascertained.  1  Siory  Eq.  Jur.  §§  I4.I,  15^,  156, 
193;  2  Jones  on  Mort.  §  1506;  Bingham  v.  Bingham,  1  Ves. 
sen.  126 ;  Cocking  v.  Pratt,  1  Ves.  sen.  JfiO ;  (Jalverley  v.  Wil- 
liams, 1  Ves.  jun.  210 ;  Hill  v.  Buckley,  17  Ves.  4-01 ;  Champlin 
V.  Layton,  6  Paige  1S9,  18  Wend.  Jfil ;  Belknap  v.  Sealey, 
2  Duer  570  ;  Quesnell  v.  Woodlief,  2  Hen.  &  Ilunf.  173,  note  ; 
Nelson  v.  Matthews,  2  Hen.  &  Munf.  16 If,;  Harrison  v.  Talbot, 
2  Dana  258  ;  Miller  v.  Chetwood,  1  Gr.  Oi.  199  ;  Coster  v.  Mon- 
roe Mfg.  Co.,  1  Gr.  Ch.  ^67;  Blair  v.  McDonough,  1  Hal.  Ch. 
327;  Course  v.  Boyles,  3  Gr.  Ch.  212;  Hopper  \.  Lutkins,  3 
Gr.  Ch.U9;  Waldron  v.  Letson,  2  McCart.  126;  Weart  v. 
Rose,  1  C.  E.  Gr.  290;  State  v.  Jersey  City,  6  Vr.  381;  Cum- 
mins V.  Wire,  2  Hal.  Ch.  73;  Miller  v.  Brolasky,  4.  Hal.  Ch. 
626,  789,  1  Stock.  806. 

Mr.  M.  P.  Gray  and  3Ir.  A.  Brovming,  for  respondent. 

The  opinion  of  the  court  was  delivered  by 

Beasley,  C.  J. 

The  essential  facts  of  this  case  may  be  thus  stated :  Clark, 
the  respondent,  was  the  owner  of  a  certain  tract  of  land,  which 
he  sold  and  conveyed  to  one  Josiah  Davis,  taking  from  him  a 
mortgage  for  a  part  of  the  consideration.  Josiah  Davis  sold  and 
conveyed  these  same  premises  to  Thomas  W.  Davis,  who  is  the 
appellant,  and  who,  in  part  payment  of  the  price  agreed  on,  as- 
sumed this  mortgage.  The  bill  was  for  the  foreclosure  of  the 
mortgage  thus  assumed.  The  defence  to  such  proceeding  is, 
that  the  quantity  of  land,  in  a  material  degree,  was  misrepre- 
sented, first  on  the  sale  of  such  land  by  Clark  to  Josiah  Davis, 
and  second,  by  the  latter  on   his  sale  to  the  appellant,  the  con- 


6  Stew.]  MARCH  TER]N[,  1881.  581 

Davis  V.  Clark. 

teution  being  that,  to  the  extent  of  such  deficiency,  there  should 
be  a  rebate  from  the  sum  due  on  the  mortgao-e. 

But  such  a  contention  has  neither  precedent  nor  principle  to 
rest  upon.  The  flaw  in  the  position  is,  that  there  is  no  privity 
of  contract  between  the  appellant  and  the  respondent  touching 
the  quantity  of  land  in  question.  The  effort,  therefoi-e,  is  to 
recoup  the  damages,  as  against  this  mortgage,  arising  from  the 
breach  of  a  contract  to  which  the  appellant  was  not  a  party,  and 
is  not  a  privy.  If,  in  point  of  fact,  the  respondent,  when  he 
sold  this  property  to  Josiah  Davis,  misstated  the  number  of  acres 
contained  in  the  tract,  so  as  to  render  himself  answerable  in  a 
suit,  such  right  of  action  has  not  passed  to  the  appellant,  by  tlie 
conveyance  of  the  premises  by  Josiah  to  him,  for  there  is  no 
covenant  in  the  deed,  to  that  effect,  running  with  the  land. 
When  such  covenant  exists,  an  offset  of  the  kind  now  claimed 
may  be  made,  and  such  effect  is  plainly  justifiable,  on  the  prin- 
ciple that  as  the  covenant  runs  with  the  land,  it  creates  a  privity 
of  contract  between  the  subsequent  grantee  of  the  premises  and 
the  original  grantor.  Such  was  the  ground  of  decision  in  the 
case  of  Coster  v.  Monroe  Mfg.  Co.,  1  Gr.  Ch.  4-^7.  But,  as 
has  been  said,  such  conventional  relationship  is,  in  the  present 
case,  entirely  wanting.  If  the  respondent  has  broken  his  con- 
tract with  Josiah  Davis,  it  is  for  him  to  vindicate  his  rights,  for 
he  has  never  transferred  to  this  appellant  the  right  to  represent 
him  in  this  respect.  For  it  is  confounding  all  legal  ideas  to  as- 
sert that  because  Josiah  Davis,  on  his  part,  has  subsequently,  and 
in  a  completely  independent  transaction,  broken  a  similar  con- 
tract made  with  the  appellant,  that  thereby  a  right  of  action 
accrued  to  the  latter,  not  only  against  Josiah  Davis,  but  likewise 
against  the  grantor  of  Josiah  Davis,  with  whom  he  has  no  con- 
nection, by  way  of  stipulation,  either  directly  or  indirectly.  If 
Josiah  Davis  has  injured  the  appellant,  by  means  of  breaking 
his  contract  or  otherwise,  he  is  answerable  to  hi  in  for  the 
resulting  damage,  but  from  such  liability  it  is  impossible  to  de- 
duce a  transfer  by  the  former  of  a  right  of  action  which  he  has 
against  a  third  party.  Besides,  if  such  a  transmission  of  a  cause 
of  action  could,  by  any  possibility,  be  implied,  it  is  obvious  that 


582         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Davis  V.  Clark, 

in  a  proceeding  enforcing  such  a  right,  Josiah  Davis  would  be  a 
necessary  party.  For  if,  in  this  action,  to  which  Josiah  Davis 
is  not  joined,  it  should  he  found  that  the  respondent  had  broken  his 
bargain  with  him,  and  if  the  appellant  should  be  permitted  to 
offset,  against  the  money  due  on  this  mortgage,  the  damage  so 
resulting,  it  is  undeniable  that  Josiah  Davis  would  not  be  bound 
in  any  degree  by  such  a  result,  and  he  would  be  at  liberty,  un- 
affected by  such  decree,  to  prosecute  the  respondent  on  the  same 
ground,  for  any  loss  sustained  by  him.  So,  a  decree  in  the  re- 
spondent's favor  on  the  issue  in  this  suit,  whether  he  violated  his 
agreement  with  Josiah  Davis,  would  be  no  bar  against  an  action 
for  the  same  cause  by  the  latter.  The  attempt  to  invest  the  ap- 
pellant with  the  right  claimed  is  not  only  inconsistent  with  cor- 
rect principle,  but  is  full  of  consequential  crudities. 

It  will  be  found,  upon  looking  into  the  authorities,  that  the 
doctrine  which  prevails  in  equity  by  force  of  which  a  deduction 
is  allowed  to  be  made  from  the  moneys  due  on  a  mortgage,  by 
reason  of  damages  having  been  sustained  by  a  deficiency  in  the 
stipulated  quantity  of  land  conveyed,  is  the  effect  of  the  equitable 
principle  that  in  a  court  of  chancery  the  vexation  of  a  circuity 
of  action  will  be  obviated  as  far  as  practicable.  Where  the  mort- 
gagee is  liable  to  the  mortgagor  for  damages  in  consequence  of 
the  failure  of  the  land  to  come  up  to  the  represented  acreage, 
an  offset  of  such  damages  will  be  allowed  in  a  foreclosure  of  a 
mortgage  given  for  the  price  of  the  land.  In  such  a  situation, 
the  stipulation  as  to  the  number  of  acres  is  an  independent  term 
from  the  stipulation  for  the  payment  of  the  price,  and  the  off- 
set alluded  to  is  made  by  way  of  recoupment  and  in  order  to 
lessen  the  litigation.  It  is  on  this  ground  that  the  decisions 
rest,  and  no  case  has  been  referred  to,  that  carries  the  doctrine 
beyond  the  point  of  permitting  such  offset  in  cases  in  which 
the  mortgagee  has  a  right  of  action  against  the  mortgagor. 
And  in  this  case  no  such  right  of  action  exists. 

Let  the  decree  be  affirmed. 

Decree  unanimously  affirmed. 


€  Stew.]  MARCH  TERM,  1881.  583 

Fuller  V.  Fuller. 


"Warren  F.  Fuller,  appellant, 

•    V. 

Anna  M.  Fuller,  respondent. 
Mr.  Theo.  Ryerson  and  Mr.  G.  Collins,  for  appellant 
Mr.  J.  B.  Vredenhurgh,  for  respondent. 

On  appeal  from  a  decree  founded  on  the  following  findings  of 
Mr.  J.  D.  Bedle,  advisory  master : 

■  The  evidence  in  this  case,  on  each  side,  is  very  unsatisfactory 
in  many  respects,  yet,  after  a  good  deal  of  examination  and  care, 
I  have  reached  the  following  conclusions  : 

1.  That  tlie  defendant  is  guilty  of  adultery,  and  particularly 
on  September  27th,  1878,  in  Jersey  City,  with  some  person 
unknown. 

2.  That  the  complainant  is  also  guilty  of  adultery,  and  par- 
ticularly with  Margaret  Frauham,  December  1st,  1878,  in  Jer- 
sey City. 

3.  As  to  condonation :  The  inclination  of  ray  mind  is,  that 
this  defence  is  sustained,  yet  a  definite  determination  of  it  is  un- 
necessary. 

4.  The  prayer  for  divorce  is  denied,  and  the  bill  dismissed. 

6.  The  complainant  to  pay  the  costs  of  both  sides,  and  de- 
fendant to  have  liberty  to  apply  for  any  order  proper  as  to  coun- 
sel fees,  disbursements  and  alimony  pending  the  suit. 

The  opinion  of  the  court  was  delivered  by 

Beasley,  C.  J. 

This  was  a  bill  filed  by  a  husband  against  his  wife  for  a 
divorce,  on  the  ground  of  her  having  committed  the  crime  of 
adultery.     In  her  answer,  the  wife  denied  this  charge,  and  re- 


584        COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 


Allen  V.  Williams. 


criminated  the  husband.  The  master  who  heard  the  case  in  the 
court  of  chaucery  advised  a  decree  refusing  the  prayer  of  the 
bill,  putting  his  conclusion  on  the  ground  that,  "after  a  good 
deal  of  examination  and  care,"  he  liad  become  satisfied  that  the 
complainant  as  well  as  the  defendant  had  been  guilty  of  a  viola- 
tion of  their  matrimonial  duty  in  the  respect  alleged.  He,  how- 
ever, says  "  that  the  evidence  on  each  side  is  very  unsatisfactory 
in  many  respects." 

Upon  a  careful  review  of  the  case  in  this  court,  we  have  con- 
cluded that  the  decree  should  be  affirmed,  but  we  place  this 
result  on  the  ground  that  the  principal  testimony  on  each  side  is 
so  untrustworthy,  as  well  on  account  of  the  bad  character  of  the 
witnesses  as  of  the  great  improbability  of  their  narrations,  that  it 
is  not  sufficient  for  the  purpose  of  founding  a  conclusion  of  the 
guilt  of  either  the  husband  or  the  wife  of  the  offence  charged. 

Let  the  decree  be  affirmed. 

Decree  unanimously  affirmed. 


Thomas  E.  Allen  et  al.,  appellants, 

V. 

Elias  S.  Wllllams  et  al.,  respondents. 

1.  Where  a  statute  relating  to  drainage  authorized  the  commissioners  to 
purchase  a  mill  property,  and  such  commissioners,  having  previously  made 
an  assessment  to  meet  the  general  expenses  of  the  scheme,  entered  into  a  con- 
tract to  purchase  under  a  large  penalty ;  and  not  being  in  funds  at  the  day  for 
performance,  in  consequence  of  the  non-payment,  in  part,  of  such  assessment, 
advanced  their  own  moneys  to  make  up  such  purchase-money — Held,  on  bill 
filed,  that  they  were  entitled  to  be  re-imbursed  by  an  equitable  enforcement  of 
such  assessment. 

2.  When  persons  acting  for  others  under  statutory  authority  advance  moneys 
in  good  faith  and  beneficially  for  the  persons  whom  they  represent,  re-im- 
bursement  of  such  moneys  will,  as  a  general  rule,  be  allo^ved  in  a  court  of 
equity. 


6  Stew.]  MARCH  TERM,  1881.  585 

Allen  V.  Williams. 

3.  The  claim  in  this  case  held  to  be  an  equitable  one,  and  one  which,  being 
equitable,  and  also  for  an  unliquidated  amount,  could  not  be  enforced  bv 
mandamus. 


On  appeal  from  a  decree  of  the  chancellor,  whose  opinion  is 
reported  in  Williams  v.  Allen,  5  Stew.  Eq.  4-85. 

Mr.  B.  Williamson^  for  appellants. 

Mr.  H.  C.  Pitney,  for  respondents. 

The  opinion  of  the  court  was  delivered  by 

Beasley,  C.  J. 

The  facts  upon  which  the  bill  in  this  case  rests  are  fully 
stated  in  the  opinion  of  the  chancellor,  and  consequently  it  does 
not  appear  to  be  necessary  at  this  time  to  do  more  than  refer  to 
those  which  seem  to  me  necessary  to  render  perspicuous  the  views 
about  to  be  expressed  on  the  several  points  raised  in  the  argu- 
ment before  this  court. 

The  object  of  the  bill  is  to  enforce  certain  assessments  that 
were  made  by  the  three  original  commissioners  by  virtue  of  an 
act  entitled  "An  act  to  enable  the  owners  of  swamps  and  marshy 
lauds  lying  on  the  upper  Passaic  and  its  tributaries,  in  the  counties 
of  Morris  and  Somerset,  to  drain  the  same,"  approved  April  21st, 
1868,  (P.  L.  of  1868  p.  1181).  The  validity  of  this  assessment  is 
not  in  question,  as  it  has  already  been  accredited  by  a  decision  of 
this  court.  Having  made  this  assessment,  these  commissioners 
entered  into  a  writteu  contract  for  the  purchase  of  a  certain  mill 
property,  known  as  Dunn's  mill,  and  therein  bound  themselves, 
in  a  penalty  of  $3,000,  to  pay  for  the  same  within  a  time  stipulated. 
On  a  bill  exhibited  by  the  present  defendants,  calling  iu  ques- 
tion the  power  of  these  commissioners  in  this  respect,  the  chan- 
cellor justified  such  exercise  of  authoi'ity,  and,  "  with  the  con- 
sent of  the  parties  in  open  court,  ordered  the  commissioners  to 
hold  such  mill  property  in  trust  for  the  purposes  of  said  act." 
Prior  to  the  making  of  this  decree,  the  time  fixed  for  the  ])ay- 
ment  of  such  property,  by  the  terms  of  their  contract,  having 


586        COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

A  lien  V.  Williams. 

arrived,  and  not  having  collected  from  the  assessment  before 
mentioned  sufficient  moneys  for  such  indebtedness,  the  commis- 
sioners made  up  the  deficiency  out  of  their  own  resources,  and 
thus  obtained  a  title  for  the  property  in  question.  At  this  stage 
of  these  proceedings,  these  commissioners  were  superseded  by 
the  appointment  of  their  successors,  and  after  that  event,  the 
statute  under  which  these  proceedings  had  taken  place  was  re- 
pealed, saving,  however,  all  rights  which  had  been  acquired 
under  it.  It  has  been  already  adjudged  that  after  this  repealing 
law,  the  right  to  enforce  and  make  assessments  requisite  to  settle 
all  outstanding  leg-al  liabilities  resided  in  the  new  board  of 
managers.  Two  of  the  original  managers  have  died,  and  the 
complainants  are  the  survivors  and  the  representatives  of  those 
deceased,  their  object  being  to  levy,  through  the  aid  of  the  court 
of  equity,  on  the  lands  originally  assessed  by  them,  so  much  of 
the  assessment  as  will  be  sufficient  to  re-imburse  them  for  the 
moneys  paid  by  them  out  of  their  private  means  in  the  purchase 
of  the  mill  property  before  mentioned.  These  are  some  of  the 
facts  extracted  from  the  bill,  which  has  been  demurred  to. 

The  claim  to  relief  thus  made  is  opposed,  principally,  on  two 
grounds,  the  first  of  these  being,  that  the  advance  of  the  moneys 
of  which  re-imbursement  is  sought  was  a  breach  of  duty  on  the 
part  of  these  managers,  and  consequently  that  they  have  no 
standing  to  ask  for  aid  from  a  court  of  equity.  In  support  of 
this  position,  it  is  insisted  that  the  statute  in  question  does  not 
confer  upon  these  officers  the  right  to  borrow  money,  and  that 
the  exercise  of  such  authority  is  contrary  to  its  spirit  and  policy. 

So  far  as  the  facts  are  concerned,  I  think  this  position  well 
taken,  for  I  can  find  in  none  of  the  provisions  of  this  law,  nor 
in  its  general  object,  any  appearance  of  an  authority  to  resort  to 
loans  for  tiie  })urpose  of  carrying  into  effect  the  statutory  scheme. 
The  plan  upon  which  this  improvement  was  to  have  been  made 
is  obviously  based  on  moneys  in  hand  derived  from  assessments, 
and  it  must,  therefore,  be  conceded  that  when  these  officers  paid 
the  consideration,  in  part,  for  these  lands  with  their  own  moneys, 
they  did  an  act  for  which  they  can  point  to  no  authority  in  the 
law  under  which  they  were  acting.     But  it  does  not  follow  from 


6  Stew.]  MARCH  TERM,  1881.  587 

Allen  V.  Williams. 

this  concession  that  these  land-owners,  for  wh6m  these  complain- 
ants were  agents  in  this  matter,  can  take  to  themselves  the  benefit 
of  this  pnrchase  without  paying  for  it.  The  bill  of  complaint, 
in  this  respect,  alleges  that  these  premises  were  purchased  "at 
the  wish  and  desire  "  of  these  land-owners,  and  it  was  afterwards 
decided  in  the  chancery  suit  already  referred  to,  that  such  pur- 
chase was  one  of  the  specified  duties  imposed  on  these  complain- 
ants by  this  statute,  and  by  the  same  clause  it  was  directed,  with 
the  consent  of  these  land-owners,  who  were  defendants  in  that 
suit,  that  the  complainants  should  hold  said  property  in  "  trust 
for  the  purposes  of  said  act."  When  this  decision  was  made,  the 
moneys  now  in  question  had  been  advanced  by  these  managers, 
and  when,  therefore,  in  that  position  of  things,  these  defendants 
assented  to  a  decree  which  vested  in  them  the  beneficial  use  of 
these  lands,  it  must  be  inferred  that  they  intended  to  pay  for  it. 
Such  an  assent  must  be  deemed  an  approval,  in  a  most  conclusive 
form,  of  the  entire  transaction  embraced  in  this  purchase.  Nor 
do  I  think  that  in  the  absence  of  such  ratification,  these  com- 
plainants would  have  been  destitute  of  a  rigiit  to  reclaim  these 
moneys.  They  were  officially  bound  to  acquire  this  property, 
and  accordingly  they  entered  into  an  agreement  to  take  the  title 
to  it  in  a  designated  time,  binding  themselves  to  comply  with 
such  contract  under  a  penalty  of  $3,000.  This  engagement 
a[>pears  to  have  been  in  all  respects  reasonable,  for  they  had 
already  made  an  assessment  which,  if  paid  in  due  course,  would 
have  put  them  in  possession  of  the  requisite  funds.  These  just 
expectations  were  not  realized,  in  consequence  of  the  default  of 
these  defendants  not  paying  their  quotas  of  the  assessment  in 
question.  The  consequence  was,  that  the  complainants  were 
placed  in  the  dilemma  of  either  losing  the  land,  which  it  was 
their  duty  to  obtain,  and  of  subjecting  their  principals  to  a  heavy 
loss  under  the  penal  clause  in  the  agreement,  or  of  raising  the 
money  out  of  their  private  means.  It  does  not  seem  to  me  that, 
in  adopting  the  last  branch  of  this  alternative,  they  acted  in  a 
manner  that  is  open  to  the  faintest  hostile  criticism.  Such  con- 
duct seems  to  me  not  only  unobjectionable,  but  j)raiseworthy, 
and  certainly  the  censure  of  those  who,  by  their  fiiilure  to  pay 


588         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 


Allen  V.  Williams. 


their  just  dues,  had  necessitated  it,  is  entitled  to  no  consideration. 
These  payments  can  hardly  be  called  voluntary,  for  they  were 
made  uuder  the  constraint  of  an  unexpected  emergency.  They 
were  plainly  beneficial  to  the  body  of  persons  represented  by 
these  managers,  and  moneys  expended  under  such  conditions 
can,  upon  the  ordinary  principles  of  equity,  be  reclaimed  by  the 
agent  making  such  outlay.  Such  is  the  rule  often  exemplified 
in  the  dealings  of  courts  of  equity  with  the  accounts  of  trustees. 
In  that  particular,  the  doctrine  is,  that  all  disbursements  which 
the  court,  on  application,  would  have  sanctioned,  will  be  affirmed 
if  the  trustee  makes  them  without  order,  and  that  expenditures 
for  the  good  of  the  estate  will,  under  any  ordinary  circumstances, 
be  allowed  to  him.  In  Gibson  v.  Bott,  7  Ves.  150,  the  court 
said  it  would  protect  an  executor  in  trust  in  doing,  without  aa 
order,  what  it  would  order  him  to  do.  The  following  cases 
exhibit  other  applications  of  the  principle :  Fountaine  v.  Pellett, 
1  Ves.  SJjB  ;  Marry  v.  De  Rotlenham,  6  Johns.  Ch.  52  ;  Mathews 
V.  Dragand,  3  Desauss.  25  ;  Altemus  v.  Elliott,  2  Barr  62.  The 
present  case,  with  respect  to  the  matter  now  in  hand,  calls  for  a 
settlement  founded  on  a  principle  quite  as  liberal  as  is  this  equi- 
table doctrine.  The  disbursement  in  question  was  constrained  by 
the  default  of  the  persons  who  now  except  to  its  enforcement, 
while,  at  the  same  time,  they  have  accepted  its  benefits ;  it  was 
made  in  good  faith,  by  statutory  officers,  in  behalf  of  those  whose 
interests  had  been  confided  to  their  keeping,  and  it  would  be 
strange  indeed  if  such  circumstances  would  not  lay,  in  a  court 
of  equity,  a  claim  for  repayment. 

In  connection  with  the  act  of  the  complainants  in  purchasing 
this  mill  property,  their  subsequent  conduct  with  respect  to  it 
was  strongly  condemned  by  the  counsel  of  the  defendants,  in  his 
argument  before  this  court.  The  part  of  such  conduct  that  was 
deemed  objectionable  was  the  act  of  the  complainants  in  dealing 
with  this  property  after  the  expiration  of  their  own  term  of  office, 
and  after  the  appointment  of  their  successors.  After  these  events, 
what  the  complainants  did  was  this,  they  tore  down  the  mill-dam 
and  sold  the  mill  thus  mutilated ;  it  is  urged  that,  being  out  of 
office,  this  was  a  gross  breach  of  trust.     But  this,  it  seems  to 


6  Stew.]  MARCH  TERIM,  1881.  589 

Allen  V.  Williams. 

me,  is  not  a  feature  that  will  injuriously  affect  these  complain- 
ants' right  to  a  standing  in  equity,  and  it  is  that  right  alone 
that,  on  this  demurrer,  is  drawn  in  question.  Grant  that  it 
be  true  that  these  managers  have  despoiled  and  squandered 
the  trust  estate,  how  does  it  follow  that  from  such  an  incident, 
tiiey  will  lose  their  lien  on  the  assessment  in  question,  if  they 
can  show,  after  all  deductions  for  mistakes  or  misconduct  in 
regard  to  the  property  that  was  in  their  hands,  the  balance  is 
in  their  favor?  At  the  present  time  this  court  is  not  called  upon 
to  decide  whether  or  not  there  has  been  any  abuse  of  their  author- 
ity on  the  part  of  these  complainants;  that  is  a  matter  that  will 
be  settled  in  the  progress  of  this  cause.  I  can  see  no  solidity 
in  the  contention  that,  because  of  the  misconduct  of  these  agents, 
they  have  forfeited  all  claim  to  enforce  this  lien,  no  matter  what 
the  amount  of  the  loss  of  the  cestuis  que  trust  may  be  relatively 
to  the  disbursements  by  their  trustees.  If  the  latter  amount 
exceeds  the  former,  the  complainants,  in  my  opinion,  have  a  right 
to  have  such  difference  raised  by  means  of  the  assessment  in 
question,  in  their  favor,  by  the  court  of  equity. 

The  remaining  objection  to  the  right  to  exhibit  this  bill  con- 
sists of  the  position  that  the  complainants  have  an  adequate  and 
easy  remedy  at  law,  by  a  mandamus,  to  compel  the  present  man- 
agers to  raise  by  sale,  under  the  original  assessment,  the  moneys 
in  question.  But  even  on  the  assumption  that  the  complainants' 
rights  could  have  been  effectuated  by  the  process  indicated,  it 
does  not  follow  that  such  process  must,  of  necessity,  be  resorted 
to.  The  test  of  the  right  of  the  complainants  to  pursue  their 
present  course  of  law,  is  the  consideration  whether  the  subject 
matter  of  the  litigation  is,  from  its  inherent  nature,  of  equitable 
cognizance,  for  if  this  be  so,  such  jurisdiction  cannot  be  ousted 
by  the  fact  that  a  common  law  remedy  to  enforce  such  right  also 
exists.  And  that  this  particular  matter  now  in  controversy  is 
of  equitable  cognizance,  appears  to  me  very  plain.  An  action 
in  a  common  law  court  would  not  have  lain  for  these  moneys. 
It  is  not  a  claim  in  personam,  but  in  rem,  for  the  statute  authorizing 
this  procedure  does  not  make  these  defendants  personally  liable, 
but  imposes  the  burthen  of  the  cost  of  the  improvement  on  a 


590         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Allen  V.  Williams. 

definite  portion  of  their  lands.  Also,  the  demand  for  tlie  moneys 
advanced  by  those  managers  lias  tlie  qualities,  not  of  a  legal,  but 
of  a  conscionable  right.  Its  elements  are  these :  by  the  purchase 
of  this  mill  property,  the  vendor  of  such  property  became  vested 
with  a  lien  in  equity  upon  the  lands  of  the  defendants,  embraced 
in  the  assessment,  as  security  for  the  payment  of  the  consideration- 
money,  and  when  the  complainants  paid  that  money  in  ease,  and 
for  the  benefit  of,  the  defendants,  and  in  a  due  discharge  of  their 
official  duty,  they,  by  that  act,  became  entitled  to  be  subrogated 
to  the  rights  of  suit  for  and  in  such  security ;  and  the  right  to 
this  subrogation  is  plainly  cognizable  in  a  court  of  chancery.  I 
am  not  aware  tliat  such  a  right  could  be  executed  under  the  forms 
of  a  court  of  common  law.  That  it  could  not  iiave  eifect  given 
to  it  by  the  process  of  mandamus,  seems  very  evident.  If  the 
right  to  subrogation  was  a  legal  right,  and  the  amount  of  the  com- 
plainants' claim  was  not  in  dispute,  then,  indeed,  an  order  from 
the  supreme  court  contained  in  its  prerogative  writ,  might  well 
go  to  the  present  commissioners  to  raise  such  definite  amount  by 
enforcing  tlie  assessment.  But,  as  has  been  said,  subrogation  is 
an  equitable  contrivance,  and  the  amount  of  the  claim  is  so  far 
from  being  admitted,  that,  as  we  have  seen,  the  defendants  insist 
that  deductions,  to  an  unaseertiiined  extent,  must  be  made  from 
the  moneys  advanced  by  these  managers.  In  proceedings  on 
mandamus,  how  could  such  questions  be  settled  ?  There  seems 
to  be  no  precedent  for  such  an  attempt,  and  it  is  altogether  incon- 
sistent with  the  nature  of  the  remedy,  which  is  only  apposite 
when  the  duty  the  performance  of  which  is  sought  to  be  enjoined, 
is  of  a  fixed  and  definite  character.  I  know  of  no  instance  in 
which  a  mandamus  has  been  issued  for  the  purpose  of  raising  an 
unliquidated  amount  of  money.  In  the  case  of  Reg'ma  v.  Clark, 
■5  Q.  B.  887,  89^,  it  was  explicitly  decided  that  a  mandamus 
would  "  not  go  for  the  payment  of  a  sum  not  ascertained." 

For  these  reasons,  I  think  the  decree  appealed  from  should  be 
affirmed. 

Decree  unanimously  affirmed. 


G  Stew.]  MAECH  TERM,  1881.  591 

Cubberly  v.  Cubberly. 


Samuel  D.  Cubberly,  appellant, 

V. 

James  D.  Cubberly  et  al.,  respondents. 

A  third  person  may  maintain  a  suit  to  enforce  a  promise  made,  on  a  lawful 
consideration,  for  his  benefit,  and  the  promisee  is  not  a  necessary  party  to 
such  suit. 


On  appeal  from  a  decree  of  the  Chancellor,  reported  in  Cub- 
bei'ly  V.  Cubberly,  6  Stew.  Eq.  82. 

Mr.  Chilion  Bobbins,  for  appellant. 

Mary  M.  Danser,  of  New  York,  made  her  will  about  Decem- 
ber 13th,  1876,  by  which  she  bequeathed  and  devised  a  large 
amount  of  property  to  various  persons  and  institutions.  The 
will  contained  a  residuary  clause,  giving  her  executor  power  to 
distribute  the  residue  of  her  estate,  after  satisfying  her  special 
devises  and  bequests,  "  to  such  charitable  or  religious  societies  or 
associations  and  corporations,  or  for  such  other  benevolent  pur- 
poses, as  he  may  see  fit." 

Mary  M.  Danser  died  in  the  city  of  New  York,  in  February, 
1877,  without  revoking  or  altering  her  will.  She  left  no  lineal 
descendants.  Her  next  of  kin  were  Smith  J.  Danser,  of  Day- 
ton, Ohio,  who  was  her  uncle;  Mrs.  Mary  Golder,  of  New 
York  city,  and  Mrs,  Susan  S.  Robinson,  of  New  Bedford,  Mass., 
who  were  her  aunts.  Her  next  of  kin  were  entitled,  at  her 
death,  to  all  of  her  estate  not  disposed  of  by  her  will.  The 
complainants  and  defendant  and  Alex.  H.  Cubberly  are  chil- 
dren of  Lucy  A.  Cubberly,  who  was,  in  her  lifetime,  an  aunt 
of  the  testatrix,  and  are  therefore  first  cousins  of  the  testatrix. 
The  will  was  offered  for  probate  in  February,  1877,  before  the 
surrogate  of  New  York  county.  Its  admission  to  probate  was 
contested  by  Smith  J.  Danser  and  others.  So  far  as  appears 
by  the  bill,  these  parties  contestant  never  withdrew  their  oppo- 
sition till  the  matter  was  finally  compromised. 


592         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Cubberly  v.  Cubberly. 

"Whilst  these  legal  proceedings  were  pending,  and  wiili  full 
knowledge"  &e.,  Samuel  D.  Cubberly  "did  then  and  there  rep- 
resent and  tell  to  the  said  Mary  A.  Golder  and  Francis  S.  Avery 
that  the  said  Smith  J.  Danser  had  given  up  all  hopes  of  success 
in  said  legal  proceedings,  and  had  abandoned  the  same  and  re- 
turned to  his  home  in  the  state  of  Ohio,  all  of  which  was  untrue, 
and  was  known  to  him  to  be  untrue  at  the  time." 

The  defendant  proposed  that  Mrs.  Golder  and  Mrs.  Robinson 
"should  give  to  him  a  power  of  attorney  authorizing  him  to  take 
such  steps  as  he  might  see  fit  to  recover  any  interest  said  M.  A. 
G.  and  S.  S.  R.  might  have  in  the  estate  of  the  said  Mary  M. 
Danser,  deceased,  other  than  specific  legacies,  and  to  do  every- 
thing necessary  and  proper  thereto  ;  that  they  should  give  him 
cue-half  of  all  such  interest  that  might  be  recovered,  and  that 
he  should  pay  all  the  costs,  fees  and  expenses  of  such  measures 
as  he  might  undertake  in  pursuance  thereof."  This  proposition 
Avas  at  that  time  (March,  1877)  rejected.  It  was  repeated  at 
different  times,  and  finally  accepted. 

The  contest  over  the  will  was  compromised  September  20th, 
1877,  the  will  admitted  to  probate,  and  the  residuary  clause  de- 
creed to  be  null  and  void.  The  effect  of  this  was  to  distribute 
the  residue  of  the  estate  to  the  next  of  kin  of  the  testatrix, 
above  named.  The  said  Golder  and  Robins«n  each  received 
out  of  the  fund  so  distributed  about  §76,000,  and  that  each  one 
of  them  paid  to  the  defendant  $38,000,  thus  giving  him  $76,000. 
The  complainants  each  claim  one-fifth  of  this,  after  deducting 
from  the  whole  sum  the  fees,  costs  and  expenses  paid  by  the  de- 
fendant under  the  terms  of  the  agreement. 

The  foundation  of  their  claim  is  the  above-alleged  agreement 
and  promise  of  the  defendant  to  divide  with  them. 

I.  The  responsibility  of  the  defendant  to  the  complainants,  if 
any,  arises  solely  from  the  agreement  above  stated. 

It  is  admitted  that  "  if  one  person  make  a  promise  to  another 
on  lawful  consideration,  for  the  benefit  of  a  third  person,  such 
third  person  may  maintain  an  action,  even  at  law,  upon  it." 

But  this  case  cannot  be  ruled  by  that  principle. 

In  this  case,  the  maxim  ex  dolo  malo  non  oritur  actio  fully  ap- 


6  Stew.]  MARCH  TERM,  1881.  593 

Cubberly  v.  Cubberly. 

plies.  Broom's  Max.  702  ;  State  v.  Thatcher,  6  Vr.  44^ ;  Nich- 
olson V.  Gooch,  5  E.  &  B.  999 ;  Tivaz  v.  Nicholls,  2  M.  G.  & 
S.  500. 

II.  That  the  complainants  might  have  set  up  a  case  which, 
leaving  out  the  statement  of  the  false  pretence,  would  not  have 
been  liable  to  demurrer,  makes  no  diflPerence.  The  defendant, 
in  case  of  such  omission,  might  have  set  it  up  by  plea  or  intro- 
duced it  in  evidence,  when  the  result  would  have  been  the  same 
as  if  it  had  been  stated  in  the  bill. 

The  rule  that  no  man  shall  set  up  his  own  iniquity  as  a  de- 
fence is  never  applied  where  the  rights  of  third  parties  are  to  be 
affected.  Hooper  v.  Lane,  6  H.  of  L.  Cases  44^,  4-'^l  I  Smith  v. 
Hubbs,  10  Me.  71 ;  Cowles  v.  Bacon,  21  Conn.  Jf.65 ;  Nellis  v. 
Clarh,  20  Wend.  21,,. 

The  defendant  has  done  right  in  demurring.  A  man  is  not 
justified  in  omitting  to  demur  to  a  bill,  even  if  fraud  is  charged, 
against  which  he  desires  to  answer.  Nesbit  v.  Bevridge,  9  Jur. 
{N.  S.)  lOU;  Mitf.  PL  128;  Broom's  Max.  1,59;  2  Dan.  Ch. 
Pr.  1399. 

III.  The  defrauded  parties,  Mrs.  Golder  and  Mrs.  Robinson, 
have  the  right  to  rescind  the  agreement  and  recover  back  the 
money  paid  the  defendant,  upon  the  ground  of  gross  fraud. 
Kerr  on  F.  &  M.  296  &c. ;  Pearsall  v.  Chapin,  U  Pa-  St.  9. 

The  bill  nowhere  states  that  they,  knowing  of  the  fraud,  have 
confirmed  or  acquiesced  in  the  contract ;  this  must  fully  appear, 
or  their  right  to  avoid  the  agreement  and  proceed  against  the 
defendant  is  unaffected.  Pearsall  v.  Chapin,  sup.;  Kerr  on  F. 
&  M.  295,  300,  309,  and  cases  cited ;  Add.  on  Con.  §§  UO, 
14,10 ;  Bishop  on  Con.  §§  203,  205 ;  Thurston  v.  Blanchard,22 
Pick.  18 ;  Stevens  v.  Austin,  1  Mete.  557 ;  Huguenin  v.  Bosely, 
14-  Ves.  273 ;  Bridgman  v.  Green,  Wilm.  Judg.  58;  Reynolds 
V.  Rochester,  4  Ind.  4^. 

IV.  The  complainants  are  equally  guilty  with  the  defendant 
in  the  fraud  charged.     It  was  held    in  Lincoln  v.    Claflin,  7 

Wall.  132,  that  the  subsequent  participation  by  a  person  in  a 

38 


694         COUET  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Cubberly  v.  Cubberly. 

fraud  and  its  fruits  was  as  effectual  to  charge  him  as  preconcert; 
and  combination  for  its  execution. 

So  a  person  is  innocent  of  a  fraud  only  so  long  as  he  does  not 
insist  upon  deriving  any  benefit  from  it.  When  he  does  so  insist, 
he  at  once  becomes  a  party  to  the  fraud.  Scholefield  v.  Templer, 
Johns.  (Eng.)  Ch.  155;  1  Story  Eq.  Jur.  §  193;  Hartoff  \. 
Hartoff,  21  Beav.  259;  Robson  v.  Colze,  1  Doug.  228;  .People 
V.  Mather,  J,,  Wend.  261 ;  Burtis  v.  Tisdall,  4.  Barb.  571. 

Where  several  are  concerned  in  a  fraud  upon  the  rights  of  a 
third  person,  equity  will  not  afford  them  relief  as  against  one 
another.  Bolt  v.  Rogers,  3  Paige  154- ;  Odenheimer  v.  Hanson^ 
4  MeLean  4^7 ;  Van  Dor  en  v.  Staats,  2  Pen.  887 ;  Gregory  v. 
Wilson,  7  Vr.  315.  And  this  is  so  even  though  the  greater 
fraud  may  be  on  one  side  or  the  other.  Bolt  v,  Rogers,  sup.; 
Nellis  V.  Clark,  20  Wend.  24. 

When  once  a  fraud  has  been  committed,  no  one  can  derive  any 
benefit  from  it,  except  it  be  an  innocent  person  who  subsequently 
acquires  an  interest  in  the  subject  matter  of  the  fraud,  and  from 
whom  some  consideration  passes.  In  such  cases,  and  when  it  can 
be  done,  such  innocent  persons  are  made  whole.  Scholefield  v. 
Templer,  sup. ;  Prero  v.  Walters,  4  Scam.  35. 

The  rule  that  where  the  fraudulent  transaction  has  been  com- 
pleted, and  the  money  received  by  one  wrong-doer,  an  action  will 
lie  against  him  in  favor  of  any  other  one  of  the  wrong-doers,  for 
his  share,  is  not  in  force  in  this  state.  Todd  v.  Rafferiy,  3  Stew. 
Eq.  254;  Watsm  v.  Hurray,  8  C.  E.  Gr.  257 ;  Gregory  v.  Wil- 
son, 7  Vr.  320. 

V.  Courts  do  not  sit  to  divide  up  the  fruits  of  fraud,  not  even 
upon  the  application  of  a  person  to  whom  the  money  in  part  be- 
longs, who  is  innocent  of  the  fraud,  and  especially  if  such  person 
would  be  liable  to  the  party  defrauded  for  the  share  received  by 
him.  Todd  v.  Rafferty,  3  Stew.  Eq.  254  /  Gregory  v.  Wilson,  7 
Vr.  315  ;  WaUon  v.  Murray,  8  C.  E.  Gr.  257 ;  Van  Dorea  v. 
Staats,  2  Pen.  887 ;  see,  also.  Price  v.  Polluck,  8  Vr.  44  /  Church 
V.  Muir,  4  Vr.  318. 

VI.  If  the  complainants  are  entitled  to  any  relief  at  all,  Mrs. 


6  Stew.]  MARCH  TERM,  1881.  595 

Cubberly  v.  Cubberly. 

Golder  and  Mrs.  Robinson  are  necessary  parties,  either  com- 
plainants or  defendants,  to  this  suit. 

If  the  arguments  on  which  the  defendants  rely  may  be  rescindi  il 
by  the  parties  defrauded,  and  they  may  proceed  at  law  or  in 
equity  to  establish  their  rights  against  the  defendant,  or  any  who 
may  take  through  him,  then  the  necessity  of  their  being  joined 
in  and  concluded  by  this  suit  is  at  once  apparent.  The  rights  of  the 
parties  concerned  cannot  be  settled  and  protected,  and  complete 
justice  done,  in  their  absence.  Hicks  v.  Campbell,  4-  G.  E.  Gr. 
1S3;  Irick  v.  Black,  2  C.  E.  Gi\189;  Keller  v.  Keller,  3  Stock. 
458. 

Mr.  E.  L.  Campbell,  for  respondents. 

I.  Neither  Mary  Ann  Golder,  Susan  S.  Robinson  nor  Frances 
T.  Avery  had  any  interest  in  the  money  for  which  the  respond- 
ents bring  suit.  So  far  as  they  are  concerned,  the  agreement  is 
executed,  and  no  injury  to  them  is  alleged  or  indicated.  Mrs. 
Avery  was  a  mere  attorney  in  fact.  1  Story  Eq.  Jur.  {11th  eel.) 
W2,  W3,  and  cases ;  Sherwood  v.  Andrews,  2  Allen  79. 

II.  Even  if  it  were  otherwise,  the  bill  alleges  that  they  still 
purpose  we  shall  have  the  money ;  this,  if  material,  is  part  of 
our  bill  to  be  proved,  and  necessarily  by  them  as  witnesses. 

III.  The  bill  sets  out  a  "  trust "  which  a  court  of  equity  will 
execute.  Wil  Eq.  Jur.  *4£3;  Eaton  v.  Cook,  10  C.  E.  (h\  55; 
Bay  V.  Roth,  18  N.  Y.  US;  Foot  v.  Foot,  58  Barb.  258. 

IV.  The  bill  presents  a  case  of  "  account,"  of  which  a  court  of 
equity  will  take  jurisdiction.  1  Story  Eq.  Jur.  4-4^,  459,  459  a, 
and  cases ;  3  Black.  Com.  164- 

V.  The  bill  sets  out  a  case  of  equitable  jurisdiction  on  tiie 
ground  of  "  discovery."  1  Story  Eq.  Jur.  690,  691,  and  notes  ; 
2  Id.  1483,  1488,  1489. 

VI.  The  bill  presents  a  case  of  equitable  jurisdiction  on  the 
ground  of  "  fraud."     1  Story  Eq.  Jur.  184,  1S5. 


596         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Perrine  v.  Vreeland. 
The  opinion  of  the  court  was  delivered  by 

Beasley,  C.  J. 

The  points  argued  before  this  court  are  the  same  questions 
presented  for  consideration  in  the  court  of  chancery ;  and  being 
of  opinion  that  the  case,  in  such  respects,  was  properly  disposed 
of,  I  shall  vote  to  affirm  the  decree. 

Decree  unardmously  affirmed. 


Mary  M.  Perrine,  administratrix  of  estate  of  William  Vree- 
land, deceased,  appellant, 

V. 

Peter  Y.  B.  Vreeland  et  al.,  respondents. 

On  appeal  from  a  decree  of  the  chancellor,  reported  in  Per- 
rine V.  Vreeland,  6  Stew.  Eq.  102. 

Mr,  S.  B.  Ransom,  for  appellant. 

Messrs.  Beniley  &  Hartshorne,  for  respondents. 

The  opinion  of  the  court  was  delivered  by 

Beasley,  C.  J. 

The  facts  of  this  case,  and  the  reasons  for  the  conclusion 
embodied  in  the  decree  appealed  from,  are  fully  stated  in  the 
opinion  of  the  chancellor ;  and  as  I  entirely  concur  in  the  views 
thus  expressed,  I  shall  vote  to  affirm  that  decree,  on  the  grounds 
thus  stated. 

Decree  unanimously  affirmed. 


6  Stew.]  MAECH  TERM,  1881.  597 

Richardson  v.  Peacock. 

William  B.  Richardson,  appellant, 

V. 

James  M.  Peacock,  respondent. 

Defendant  sold  to  complainant  the  fixtures  and  good  will  of  a  business  which 
largely  consisted  in  purchasing  poultry  in  designated  districts,  and  shipping  it 
to  New  York  for  sale ;  and  also  covenanted  with  complainant  that  he  would 
not,  at  any  time,  send  or  ship  to  New  York  any  poultry  coming  from  those 
districts.  Afterwards,  he  engaged  in  New  York  in  the  sale  of  poultry  on  com- 
mission, ordering  all  his  supplies  to  be  shipped  from  those  districts,  sometimes 
in  advance  of  his  sales,  sometimes  to  fill  contracts  of  sale  previously  made. — 
Held,  that  in  so  doing  he  was  violating  his  covenant,  and  should  be  restrained. 


On  appeal  from  a  decree  of  the  chancellor,  reported  in  Rkh- 
ardson  v.  Peacock,  1  Stew.  Eq.  151. 

Messrs.  A.  C.  Scovel  and  P.  L.  Voorhees,  for  appellant. 

I.  The  said  James  M.  Peacock,  notwithstanding  the  cov- 
enant entered  into  by  him  in  the  pleadings  in  this  case  men- 
tioned and  referred  to,  before  and  at  the  time  tlie  injunction  in 
this  case  was  served  upon  him,  had  the  right  to  carry  on  the 
business  in  which  he  was  then  engaged  in  the  city  of  New  York, 
to  wit,  the  business  of  selling  poultry  on  commission  for  such 
persons  as  would  ship  or  send  poultry  to  him  to  sell  for  them  on 
commission. 

II.  In  selling  poultry  as  a  commission  merchant  or  agent 
of  others  who  sent  and  shipped  their  poultry  to  said  Peacock  at 
New  York  city,  to  sell  for  them  on  commission,  he,  the  said 
Peacock,  did  not,  in  any  way  or  manner,  violate  his  said  cove- 
nant. 

III.  The  said  Peacock,  notwithstanding  said  covenant,  has 
the  right  to  carry  on  the  business  in  the  pleadings  and  evi- 
dence in  this  cause  mentioned  and  described,  and  which  was 
carried  on  by  him  at  the  time  when  the  bill  in  said  cause  was 
filed. 


598         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Richardson  v.  Peacock. 

Mr.  S.  H.  Grey,  for  respondent 

I.  The  covenant  between  Richardson  and  Peacock,  upon 
which  the  bill  was  filed,  was  a  valid  contract.  Miichdl  v.  Rey- 
nolds, 1  P.  Wins.  181 ;  Hitchcock  v.  Coher,  6  Ad.  &  Ell.  439 ; 
Filkinton  v.  Scott,  15  M.  &  W.  657 ;  Ross  v.  Sadgbeer,  21 
Wend.  167  ;  Horner  v.  Greaves,  7  Ring.  735  ;  Chappell  v.  Brock- 
way,  21  Wend.  163;  Whittaker  v.  Howe,  3  Beav.  383 ;  Duffy 
V.  Shockey,  11  Ind.  71 ;  Gale  v.  Reed,  8  East  86. 

The  opinion  of  the  court  was  delivered  by 

Dixon,  J. 

This  bill  was  filed  to  restrain  the  defendant  from  violating 
his  covenant. 

It  appears  that  up  to  November  14th,  1863,  the  defendant 
was  engaged  in  the  poultry  business  at  No.  121  South  street, 
Philadelphia,  which  was  carried  on  by  his  purchasing  poultry  in 
the  counties  of  Salem,  Cumberland,  Camden  and  Gloucester,  in 
this  state,  and  in  South  street,  for  certain  persons  in  New  York 
and  Washington,  to  whom  he  sent  it,  at  a  commission  of  ten  per 
cent.,  and  by  his  making  similar  purchases  for  himself,  and 
shipping  to  commission  merchants  in  New  York  or  Washington, 
for  sale  on  his  own  account,  at  a  commission  to  them  of  five  per 
cent.  This  business,  with  the  fixtures  and  good  will,  the  de- 
fendant sold  to  the  complainant,  on  the  date  mentioned,  for 
$2,000;  and  he  likewise  covenanted  with  complainant  that  he 
would  not  at  any  time  send  or  ship  any  poultry  coming  from 
said  counties  or  South  street,  to  either  New  York  or  Washing- 
ton ;  and  that  he  would  not  ship  any  poultry  to  said  cities  so 
that  the  same  might  in  any  way  interfere  with  or  prejudice  the 
business  he  sold  out.  This  is  the  covenant  which  it  is  claimed 
he  has  broken. 

The  case  is  not  one  of  a  mere  implied  contract,  growing  out 
of  a  sale  of  the  good  will  of  a  business.  Such  a  sale,  without 
more,  while  it  does  not  prevent  the  vendor  from  carrying  on  a 
similar  business,  and,  perhaps,  dealing  with  the  old  customers, 


6  Stew.]  MAECH  TERM,  1881.  599 

Kichardson  v.  Peacock. 

will  prevent  his  soliciting  the  old  customers  by  any  means  other 
than  the  general  advertisement  of  his  business.  Laboucher-ev. 
Lawson,  L.  R.  {13  Eq.  Cas.)  322;  Leggott  v.  Barrett,  L.  R.  {15 
Ch.  Div.)  306. 

But  here  there  is  an  express  covenant,  the  binding  force  of 
which  is  not  impugned  by  the  defendant,  and  the  sole  question 
is  whether  it  has  been  violated. 

The  defendant  admits  that  at  the  filing  of  the  bill  he  was 
engaged  as  a  commission  merchant  in  the  poultry  business  in 
New  York  city ;  that  he  had  but  five  consignors,  one  stationed 
in  South  street,  Philadelphia,  one  in  Gloucester  county,  and 
three  in  Salem  county ;  that  iiis  business  consisted  in  making 
sales  of  poultry  in  New  York,  and  ordering  these  parties  to  ship 
to  the  purchasers  what  was  required  to  fill  his  contracts,  and 
also  in  receiving  such  poultry  as  they  might  ship  to  him  in  New 
York,  and  selling  it  for  them;  and  in  either  case,  his  compen- 
sation was  a  commission  on  the  price. 

We  think  this  was  in  violation  of  his  covenant.  True,  he  did 
not  personally  ship  or  send  the  poultry  which  he  had  agreed  not 
to  ship  or  send,  but  he  ordered  and  procured  it  to  be  shipped 
and  sent,  for  his  own  gain,  and  in  such  a  manner  as  to  lessen  the 
opportunities  for  profit  which  the  complainant  might  otherwise 
have  enjoyed  in  his  business.  It  is  not  as  if  the  defendant  had 
simply  established  himself  in  the  poultry  commission  busi- 
ness in  New  York,  and  there  had  sold  whatever  was  sent 
him,  although,  included  in  it,  had  been  poultry  coming 
from  the  interdicted  territory;  but  the  fact  is,  that  his  wiiole 
business  in  New  York  rested  upon  his  procuring  shipments  from 
this  territory,  and  he  actively  solicited  and  caused  such  ship- 
ments to  be  made. 

These  transactions  were  plainly  prohibited  by  the  terms  of  his 
bargain,  and  the  chancellor  rightly  decreed  that  he  should  be 
restrained. 

Decree  unanimously  affirmed. 


600         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 


Pinnell  v.  Boyd. 


Charles  Pinnell,,  appellant, 

V. 

Adonijah  S.  Boyd  et  al.,  respondents. 

Where  the  mortgagor  and  the  second  mortgagee  have  a  right  to  set  up  the 
defence  of  usury  against  the  first  mortgage,  a  sheriff,  selling  the  land  on  fore- 
closure of  the  second  mortgage,  does  not,  by  conveying  subject  to  the  first 
mortgage,  deprive  the  purchaser  of  the  right  to  set  up  the  same  defence.  The 
sheriff  has  no  power  to  waive  the  usury. 


On  appeal  from  a  decree  advised  by  the  vice-chancellor,  and 
reported  in  Pinnell  v.  Boyd,  6  Stew.  Eq,  190. 

Mr.  8.  B.  Ransom,  for  appellant. 

I.  The  appellant,  Adonijah  S.  Boyd,  the  defendant  below,  was 
a  second  mortgagee.  He  foreclosed  his  mortgage,  to  pay  which 
the  premises  were  sold  by  the  sheriff  of  the  county  of  Hudson. 
The  respondent,  the  complainant  below,  was  not  made  a  party  in 
that  suit.  Boyd  purchased  the  premises  under  his  own  foreclo- 
sure sale.  So  he  not  only  acquired  title  under  a  foreclosure  of  a 
mortgage  subsequent  to  that  of  the  respondent,  but  he  was  the 
mortgagee  who  held  the  mortgage  under  which  he  acquired  iiis 
title. 

It  is  not  alleged  or  pretended  in  the  bill  that  the  appellant 
took  his  mortgage  subject  to  the  lien  of  the  respondent's  mortgage. 
It  does  not  in  any  way  appear  that  respondent's  mortgage  was  in 
any  way  referred  to  by  the  mortgagor  when  he  executed  the 
mortgage  to  Mr.  Boyd.     Brolasky  v.  Miller,  1  Stock.  807. 

II.  The  defendants  below,  the  appellants  here,  are  not,  by 
reason  of  any  averments  in  the  bill  and  admissions  made  in  tlieir 
answer,  precluded  from  setting  up  usury  against  the  coini)lain- 
ant's  mortgage.  Dolman  v.  Cooh,  1  McCart.  63 ;  Brolashy  v. 
Miller,  1  Stock.  8U;  Conover  v.  Hohart,  9  C.  E.  Gr.  123;  Lee 
v.  Stiger,  3  Stew.  Eq.  610. 


6  Stew.]  MARCH  TERM,  1881.  601 

Pinnell  v.  Boyd, 

III.  The  answer  does  not  admit  that  Boyd  purchased  the 
premises  subject  to  Pinnell's  mortgage. 

IV.  The  vice-chancellor  says:  "Even  if  it  were  possible  to  so 
read  the  answer  in  this  case  as  to  be  able  to  say  that  it  did  not 
admit  the  material  fact  charged  in  the  bill,  still  we  would  be 
bound  to  regard  the  silence  of  the  answer  upon  this  point  as  an 
admission  of  the  fact.  A  material  and  controlling  fact,  which  is 
clearly  and  fully  averred  in  the  bill  and  not  denied  or  alluded  to 
in  the  answer,  must  be  taken  as  confessed." 

The  rule,  as  stated  by  the  vice-chancellor,  is  not  of  universal 
application.  Scudder  v.  Van  Amhurgh,  ^  Edw.  Ch.  29  ;  Galla- 
tin V.  Cunningham,  Hopk.  Ch.  48;  Mitf.  215,  216;  2  Mad.  322, 
823,  324;  Frost  v.  Beekman,  1  Johns.  Ch.  302;  Murray  v.  Fin- 
nister,  2  Johns.  Ch.  157  ;  Denning  v.  Smith,  3  Johns.  Ch.  34^. 

Mr.  J.  C.  Besson,  for  respondent. 

The  opinion  of  the  court  was  delivered  by 

Dixon,  J. 

This  bill  was  filed  to  foreclose  a  first  mortgage  upon  lands  in 
Hudson  county.  It  alleged  that  the  mortgagor  had  given  a 
second  mortgage  to  A.  S.  Boyd,  on  the  same  premises ;  that  Boyd 
had  foreclosed  his  mortgage,  and  that  on  his  foreclosure,  the 
sheriff  had  sold  and  conveyed  the  premises  in  fee,  to  Boyd,  and 
then  charged  that  said  premises  were  sold  to  Boyd  with  full 
notice  of  complainant's  mortgage,  and  subject  to  the  lien  thereof. 
The  defendant,  Boyd,  answered,  admitting  the  complainant's 
mortgage,  his  own  subsequent  mortgage,  his  foreclosure,  and  the 
sale  to  himself,  as  stated  in  complainant's  bill,  and  then,  with 
requisite  particularity,  set  up  usury,  in  the  complainant's  mort- 
gage, to  the  amount  of  ^200.  The  proofs  fully  establish  the 
usury  as  alleged;  but  the  vice-chancellor  refused  to  give  effect  to 
such  defence,  because  of  the  averment  in  the  bill,  undenied  in 
the  answer,  that  the  property  was  sold  on  the  prior  foreclosure, 
subject  to  comnlaiuant's  mortgage.     From  the  decree  thereupon 


602         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Pinnell  v.  Boyd. 

made,  Boyd  appeals,  and  thus  is  presented  the  question  for  deci- 
sion. 

The  principles  governing  the  case  have  been  already  settled  in 
this  court. 

The  defence  of  usury  in  a  mortgage  may  be  set  up  by  the 
mortgagor,  or  by  any  one  claiming  under  and  in  privity  with 
him,  as,  for  example,  by  subsequent  mortgagees,  or  by  purchas- 
ers at  sheriff's  sale.     Brolashy  v.  Miller,  1  Stock.  807. 

But  the  mortgagor  may  waive  the  usury,  and  then  those  hold- 
ing under  him,  by  subsequent  conveyance,  cannot  avail  them- 
selves of  the  defence;  likewise,  one  who  has  acquired  from  the 
mortgagor  the  right  to  plead  the  usury,  may  also  remove  the 
taint  as  to  himself,  and  those  thereafter  deriving  title  from  him. 
Wm^ck  V.  Dawes,  11  C.  E.  Gr.  5Jt8. 

From  these  principles,  it  follows  that  Boyd  possesses  the  right 
to  reduce  the  complainant's  mortgage  for  usury,  both  in  his 
capacity  as  mortgagee  and  as  purchaser  at  sheriff's  sale,  unless 
the  mere  averment  that  at  such  sale  the  property  was  sold  sub- 
ject to  the  complainant's  mortgage,  shows  a  defeasance  of  the 
right. 

It  has  been  held  that  if  the  mortgagor  convey  the  property  by 
deed,  expressly  subject  to  the  amount  of  the  existing  mortgage, 
the  grantee  cannot  set  up  the  usury,  for  such  language  imports  a 
waiver.  But  no  case  is  cited  to  the  effect  that  a  sheriff,  selling 
lands  under  a^./a.  against  the  mortgagor,  to  satisfy  a  subsequent 
mortgage  which  itself  preserved  the  defence,  has  any  power  so  to 
purge  the  taint.  And,  plainly,  he  can  have  none.  His  duty  is 
to  sell  the  property,  in  the  interest  of  the  defendant  and  the  sec- 
ond mortgagee,  for  the  best  price  it  will  bring,  and  obviously,  he 
■would  be  defeating  this  aim,  if  he  should  impose  conditions  pre- 
venting the  purchaser  from  asserting  the  rights  concerning  the 
land,  which  these  parties  possess.  He  has  no  power  to  do  so. 
His  sale  and  conveyance  transfer  to  the  purchaser  the  same  right 
to  allege  the  usury  in  the  previous  mortgage  as  they  wjiose  estate 
he  conveys,  had,  and  though  he  declare,  at  his  auction  and  in  his 
deed,  that  he  sells  subject  to  the  prior  encumbrance,  such  a.<ser- 
tion  cannot  create  a  waiver  of  the  right  to  plead  the  usury ;  it  ia 


6  Stew.]  MARCH  TERM,  1881.  603 

Gaines  v.  Green  Pond  Iron  Mining  Co. 

a  mere  notice,  which  he  may  fairly  give,  to  apprise  persons  of 
what  claims  may  be  made  against  the  title  he  conveys. 

We  conclude,  therefore,  that  the  bill  does  not  state  any  facts 
from  which  the  waiver  of  the  defence  for  usury  is  the  legitimate 
inference,  and  that  consequently  the  decree  below  should  be 
reversed. 

For  reversal — Beasley,  C.  J.,  Depue,  Dixon,  Knapp, 
Magie,  Parker,  Reed,  Scudder,  Van  Syckel,  Clement, 
Cole,  Green — 12. 

For  affirmance — Dodd — 1. 


Marquis  D.  L.  Gaines  et  al. 

V. 

The  Green  Pond  Iron  Mining  Company  et  al. 

1.  The  life  tenant  has  a  right  to  use  a  mine  for  his  own  profit  where  the 
owner  of  the  fee,  in  his  lifetime,  opened  it,  even  though  he  may  have  dis- 
continued work  upon  it  for  a  long  period  of  years.  A  mere  cessation  of  work, 
for  liowever  long  a  period,  will  not  defeat  the  life  tenant's  right,  but  an 
abandonment  for  a  day,  with  an  executed  intention  to  devote  the  land  to  some 
other  use,  will  be  fatal  to  the  claim  of  the  life  estate. 

2.  New  shafts  may  be  sunk  upon  veins  of  ore  which  had  been  opened. 


On  appeal  from  a  decree  of  the  chancellor,  reported  in  Gaines 
V.  Green  Pond  Mining  Co.,  5  Stew.  Eq.  86. 

Mr.  Barker  Gummet'e,  for  appellants. 

Two    main    questions  of  fact   arise  upon  the  pleadings  and 
proofs,  to  wit : 

I.  Is  it  proved  that  Charles  Montrose  Graham  3d  and  Cor- 
nelia Ludlow  were  lawfully  married  ? 


604         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Gaines  v.  Green  Pond  Iron  Mining  Co. 

II.  Is  it  proved  that  Robert  Ludlow  Graham,  oue  of  the  com- 
plainants, is  the  lawful  issue  of  that  marriage? 

Mr.  Gum  mere  discussed  the  evidence  as  to 
(a)  Courtship. 
(6)  The  marriage. 

(c)  The  certificate  aud  registry. 

[d)  The  situation  after  marriage. 

III.  Is  Robert  Ludlow,  calling  himself  Graham,  proved  to 
be  lawfully  begotten  by  Charles  M.  Graham  ? 

(a)  Preparations  for  the  birth. 

(6)  Alleged  baptism  of  child. 

(c)  Recognition  by  family. 

Long  cohabitation  between  a  man  and  woman,  and  repeated 
formal  recognitions  by  them,  are  evidence  of  their  marriage. 
Wikon  V.  Hill,  ^  Beas.  145. 

Long  cohabitation  and  general  reputation  during  the  period  of 
such  cohabitation,  are  evidence  of  marriage.  Young  v.  Foster, 
U  N.  H.  lU. 

But  I  deny  that  any  case  has  ever  held  that  where  the  parties 
have  never  cohabited,  and  the  alleged  husband,  up  to  the  time 
of  his  death,  denied  the  alleged  marriage,  and  where  the  hus- 
band's father  also  denied  the  marriage  up  to  the  time  of  the 
alleged  husband's  death,  that  the  subsequent  recognitions  of  such 
father  are  evidence  of  marriage. 

IV.  Alleged  waste. 

So  long  as  the  laud  is  fairly  used  for  the  purposes  to  which  it 
was  dedicated  by  the  ancestor  or  donor,  no  waste  is  committed. 
But  when  the  use  is  one  which  is  inconsistent  with  such  dedica- 
tion, it  is  waste,  provided  such  use  does  a  lasting  damage  to  the 
freehold  or  inheritance,  and  tends  to  the  permanent  loss  of  the 
owner  in  fee,  or  to  destroy  or  lessen  the  value  of  the  inheritance. 
1  Wash.  Real  Prop.  *10S,  and  note  1 ;  Stoughton  v.  Leigh,  1 
Taunt.  Jfi2,  Jfi9 ;  Billings  v.  Taylor,  10  Pick.  4.60  ;  Coates  v. 
Cheever,  1  Cow.  460;  Reed  v.  Reed,  1  C.  E.  Gr.  248  ;  Bagot  v. 
Bagot,  32  Beav.  509  ;  Elias  v.  Snowdon  Slate  Co.,  L.  R.  {4  App. 
Cas.)  454' 


6  Stew.]  MARCH  TERM,  1881.  605 

Gaines  v.  Green  Pond  Iron  Mining  Co. 

In  America,  the  law  of  waste  has  been  modified  to  suit  the  cir- 
cumstances of  a  new  and  growing  country.  Finlay  v.  Smith,  6 
Munf.  134.;  Neel  v.  Neel,  19  Pa.  St.  3S3 ;  Irwin  v.  Covode,  2^ 
Fa.  St.  162 ;  Westmoreland  Coal  Co.'s  Appeal,  85  Pa.  St.  344- 

That  the  new  opening,  made  by  the  Green  Pond  Iron  Com- 
pany, on  the  same  vein  opened  by  Dr.  Graham,  was  not  an  opening 
of  new  mines,  is  too  strongly  fixed  by  authority  to  be  questioned. 
AVhen  opened,  the  vein  became  a  mine,  and  our  new  openings  are 
workings  of  the  same  mine.  Findlay  v.  Smith,  uhi  supra  ;  Elias 
V.  Snowdon  Slate  Co.,  uhi  supra  ;  Croach  v.  Puryear,  1  Rand. 
S58 ;  Clavering  v.  Clavering,  2  P.  PFws.  388. 

Mr.  Henry  C.  Pitney,  for  appellants. 

I.  As  to  the  titles  of  the  complainants. 

(a)  The  burthen  is  on  the  complainants  to  show  their  title  to 
the  premises,  and  this  depends,  confessedly,  on  the  legitimacy  of 
Robert  L.  Graham. 

(6)  In  making  out  his  legitimacy,  the  kind  of  evidence  which 
is  ordinarily  relied  upon  in  such  cases,  viz.,  the  cohabitation  as 
man  and  wife  of  his  mother  and  her  alleged  husband,  and  the 
acknowledgment  of  the  marriage  relation  by  the  latter,  is  entirely 
lacking.  There  is  no  pretence  of  any  such  cohabitation  or  ac- 
knowledgment. On  the  contrary,  the  entire  absence  of  it  is 
affirmatively  shown. 

(c)  The  production  of  a  marriage  certificate,  in  which  occurs 
the  name  of  a  person  somewhat  similar  to  that  of  the  alleged  hus- 
band, is  of  itself  insufficient.  The  residence  named  in  the  cer- 
tificate, being  different  from  that  of  the  alleged  husband,  destroys 
all  value  of  the  certificate  as  such,  and  increases  the  burthen  of 
proving  the  identity  of  the  alleged  husband  with  the  male  person 
who  went  through  the  ceremony. 

{d)  There  is  not  the  least  proof  in  the  case  of  the  identity  of 
the  alleged  husband  with  the  person  who  went  through  the  cere- 
mony, except  that  of  the  mother  aud  the  alleged  wife.  All  that 
the  clergyman  proves  is,  that  there  was  such  a  ceremony. 

{e)  The  mother  and  alleged  wife  is  shown  to  be  entirely  un- 
worthy of  credit,  and  is  contradicted  in  several  instances. 


606         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Gaines  v.  Greeu  Pond  Iron  Mining  Co. 

(/)  The  partial  recognition  of  the  legitimacy  of  tlie  claimant 
by  the  grandmother  and  grandfather  many  years  afterwards, 
when  both  had  fallen  into  sanility,  is  not  sufficient  to  help  out 
complainants'  case.  The  rights  of  the  true  heir,  Edward  Ennis 
Graham,  of  North  Carolina,  the  brother  of  Dr.  Graham,  who 
survived  his  grandnephew  of  the  same  name,  cannot  be  defeated 
by  such  evidence. 

II.  There  is  no  waste. 

The  facts  are  that  the  land  in  question  is  very  rough  and 
mountainous,  with  a  very  thin  covering  of  wood  and  timber, 
almost  all  of  it  entirely  unfit  for  cultivation,  and  on  it  is  a  very 
large  deposit  of  iron  ore,  known  for  years  as  the  "  Copperas 
Mine." 

The  estate  for  life  of  Mrs.  Bell  resembles  the  estate  by  the 
curtesy  of  England,  and  it  was  always  doubted  whether,  at  the 
common  law,  and  before  the  statutes  of  Marlbridge  and  Glou- 
cester, tenant  by  the  curtesy  was  impeachable  for  waste.  2  Coke 
Inst.  801 ;  Bro.  Ahr.,  Waste,  88;  2  Christ.  Black.  S83,  note. 

By  the  strict  rule  of  the  common  law,  the  opening  and  work- 
ing of  an  unopened  mine,  by  a  tenant  for  years,  was  undoubtedly 
waste. 

The  language  everywhere  used  was  "  open  "  and  "  opened  "  to 
describe  a  mine  which  tenant  for  life  might  work.  7  Bac.  Abr. 
25 J/,;  1  Cruise  118 ;  2  Bouv.  L.  D.  64S ;  Saunders's  Case,  5 
Coke  R.  12;  1  Co.  Litt.  5Jf.  h;  Com.  Dig.  Waste,  D.  4,. 

Chancellor  Kent  i4-  Comm.  76)  says  :  "  The  American  doc- 
trine on  the  subject  of  waste  is  somewhat  varied  from  the  English 
law.  and  is  more  enlarged  and  better  accommodated  to  the  cir- 
cumstances of  a  new  and  growing  country." 

And  see  the  language  of  the  judges  in  Jackson  v.  Brownson, 
7  Johns.  227  ;  Hastings  v.  Crnnckleton,  3  Yeates  261 ;  1  Scribner 
on  Dower  200,  §§  21-24, ;  Cabell,  J.,  in  Findlay  v.  Smith, 
6  Munf.134;  Ballentine  v.  Poyner,  2  Hayw.  110  ;  Sloughton 
V.  Leigh,  1  Taunt.  Jf.02 ;  Coatee  v.  Cheever,  1  Coio.  46O ;  Neel 
V.  Neel,  19  Pa.  St.  323;  L-win  v.  Covode,  2 4  Pa.  St.  162 ; 
Billings  v.  Taylor,  10  Pick.  4.60 ;   Reed  v.  Reed,  1  C.  E.  Gr. 


6  Stew.]  MARCH  TERM,  1881.  607 

Gaines  v.  Green  Pond  Iron  Mining  Co. 

84s,  250  ;  Viner  v.  Vaughan,  2  Beav.  Jf66  ;  Bagot  v.  Bagot^  32 
Beav.  609,  9  Jur.  {N.  S.)  1022;  Elias  v.  Griffith,  L.  B.  {8  Ch. 
Div.)  521 ;  S.  C,  sub  nom.  Elias  v.  Snowdon  Slate  Quarries,  L. 
R.  {4-  App.  Cas.)  454- 

The  opinion  of  the  court  was  delivered  by 

Van  Syckel,  J. 

The  bill  in  this  cause  was  filed  by  the  complainants  as  owners 
of  the  remainder  in  fee  of  a  large  tract  of  wild  lauds  in  the 
county  of  Morris,  to  restrain  the  defendants,  who,  it  is  alleged, 
have  only  a  life  estate  in  said  lands,  from  cutting  timber  and 
working  the  iron  mines  on  said  premises,  and  also  praying  for  an 
account. 

Two  principal  questions  are  raised  by  the  defendant's  answer : 
First,  whether  Robert  L.  Graham,  through  whom  the  complain- 
ants derive  their  title,  was  the  legitimate  son  of  Charles  M. 
Graham,  the  third.  Second,  whether,  if  Robertas  legitimacy  is 
established,  the  working  of  the  mines  by  the  life  tenants,  under 
the  circumstances  shown  in  this  case,  is  waste. 

The  complainants  allege  that  Charles  M.  Graham  was  married 
clandestinely  to  Cornelia  Ludlow  in  July,  1847,  and  they  admit 
.that  it  was  not  followed  by  open  cohabitation.  Under  such  cir- 
cumstances the  law  will  cast  upon  the  complainants  the  burden 
of  proving  the  fact  of  marriage  by  very  clear  and  persuasive 
evidence. 

It  is  not  deemed  necessary  to  discuss  the  testimony  on  this 
branch  of  the  case ;  it  is  sufficient  to  say  that  a  careful  considera- 
tion of  it  has  left  no  doubt  in  my  mind  that  the  chancellor  is 
justified  in  the  conclusion  he  reached  upon  this  point. 

The  complainants,  therefore,  as  owners  of  the  remainder  in 
fee,  are  entitled  to  protect  their  estate  against  waste  by  the  life 
tenant,  or  those  claiming  under  her. 

The  land  in  question  is  very  rough  and  mountainous,  and 
almost  all  of  it  unfit  for  cultivation.  On  it  there  is  a  thin  cover- 
ing of  wood  and  timber,  with  a  large  deposit  of  valuable  iron 
ore  underlying  it.     About  the  year  1812,  Dr.  Graham,   then 


608         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Gaines  v.  Green  Pond  Iron  Mining  Co. 

owner  of  the  fee,  excavated  the  iron  ore  for  the  purpose  of  man- 
ufacturing copperas,  sulphur  being  combined  with  it  in  such 
proportions  as  made  it  available  for  that  purpose.  He  made  at 
least  two  openings,  from  ten  to  fifteen  feet  deep,  out  of  which 
the  ore  was  raised,  and  carried  on  this  business  for  several  years. 
There  was  erected  upon  the  premises  a  building  used  for  pound- 
ing the  ores,  and  other  apparatus  for  treating  them.  There  was 
no  digging  for  ore  from  the  time  Dr.  Graham  quit  working 
(about  1812  or  1814)  until  about  forty  years  ago,  when  a  small 
quantity  of  ore  was  taken  out  and  tested  at  two  different  forges 
in  the  neighborhood,  and  was  considered  to  be  without  value  as 
iron  ore,  on  account  of  the  sulphur  it  contained.  From  that 
time  there  has  been  no  mining  upon  these  premises  until  the 
Green  Pond  Iron  Company  commenced  its  operations  in  1872. 

By  the  strict  rule  of  the  common  law,  the  opening  and  work- 
ing of  a  mine  by  a  tenant  for  years,  not  opened  in  the  lifetime 
of  the  previous  tenant  in  fee,  was,  equally  with  the  cutting  of 
timber,  an  undoubted  waste  of  the  estate.  In  Hoby  v.  Hohy,  1 
Vern.  218,  the  widow  was  held  to  be  dowable  of  a  coal  work. 
It  was  resolved  in  Saundeis^s  Case,  5  Coke  12,  that  if  a  man 
hath  laud  in  part  of  which  there  is  a  coal  mine  open,  and  he 
leases  the  land  to  one  for  life,  or  for  years,  the  lessee  may  dig  in 
it,  for  inasmuch  as  the  mine  is  open  at  the  time,  and  he  leases 
all  the  land,  it  shall  be  intended  that  his  intent  is  as  general  as 
his  lease." 

The  tenant  for  life,  subject  to  waste,  cannot  open  a  new  mine. 
Whitfield  V.  BeuiU,  2  P.  Wvi8.  24£. 

And  if  a  lease  of  land  be  made,  and  some  mines  are  open  and 
some  not,  the  open  mines  only  can  be  wrought.  Asfiy  v.  Ballard, 
2  Lev.  185. 

But  a  tenant  for  life  may  open  the  earth  in  new  places  in  pur- 
suit of  an  old  vein  of  coals,  when  the  coal  mine  had  been  opened 
before  he  came  in  possession  of  the  estate.  Claveriig  v.  Claver- 
ing,  2  P.  Wms.  388. 

Stoughton  v.  Leigh,  1  Taunt.  Ii02,  was  a  case  directed  out  (jf 
the  high  court  of  chancery  for  the  opinion  of  the  law  judges. 

The  case  involved  the  right  of  the  widow  to  dower  in  certain 


6  Stew.]  MARCH  TERM,  1881.  609 

Gaines  v.  Green  Pond  Iron  Mining  Co. 


mines  on  an  estate  of  which  her  husband  had  died  seized.  The 
mine  had  been  opened  and  wrought,  but  had  ceased  to  be  worked 
long  prior  to  the  husband's  death.  The  question  was  whether 
the  widow,  in  virtue  of  her  estate  in  dower,  was  entitled  to  work 
the  abandoned  mine  for  her  own  benefit. 

The  judges  answered  ti)at  the  widow  was  dowable  of  all  the 
mines  which  had  been  opened  and  worked  in  her  husband's  life- 
time, and  "  that  her  right  to  be  endowed  of  them  had  no  depend- 
ence upon  the  subsequent  continuance  or  discontinuance  of  working 
tiiem,  either  by  the  husband,  in  his  lifetime,  or  by  those  claiming 
under  him,  since  his  death." 

In  Viner  v.  Vaughan,  2  Beav.  4-^6,  Lord  Langdale  said : 

"A  tenant  for  life  has  no  right  to  take  the  substance  of  the  estate  by  opening 
mines  or  clay-pits ;  but  he  has  a  right  to  continue  the  working  of  mines  and 
clay-pits  where  the  author  of  the  gift  has  previously  done  it,  and  for  this  rea- 
son that  the  author  of  the  gift  has  made  them  part  of  the  profits  of  the  land." 

A  temporary  injunction  was  granted,  so  that  the  right  of  the 
life  tenant  to  work  the  clay  pits  might  be  passed  upon.  That 
this  case  did  not  receive  a  thorough  consideration,  is  shown  by 
the  fact  that  Stoughton  v.  Leigh  was  not  referred  to. 

This  subject  was  carefully  considered  by  Lord  Romilly,  in 
Bagot  V.  Bagot,  32  Beav.  509,  where  he  says : 

"With  respect  to  the  abandoned,  or,  as  they  are  called  in  the  pleadings  and 
evidence,  the  dormant  mines,  I  am  of  opinion  that  it  has  not  been  shown  that 
he  committed  waste  in  working  those  mines.  It  is  always  a  question  of  degree 
to  be  established  by  evidence,  whether  the  working  of  a  mine  which  has  been 
formerly  worked,  is  waste  or  not.  There  is  no  doubt  that  a  tenant  for  life, 
though  impeachable  for  waste,  may  properly  work  an  open  mine.  A  mine  not 
worked  for  twelve  months,  or  two  years,  previously  to  the  tenant  for  life  com- 
ing into  possession,  must  still  be  considered  an  open  mine.  A  mine  which  has 
not  been  worked  for  one  hundred  years  cannot,  I  think,  be  properly  so  treated. 
My  present  opinion  is,  that  a  mine  which  had  not  been  worked  fur  twenty  or 
thirty  years,  from  the  loss  of  profit  attending  the  working,  might,  witliont 
committing  waste,  be  worked  again  by  a  succeeding  tenant  for  life.  But,  if 
the  working  of  the  mine  had  been  abandoned  by  the  owner  of  the  inheritance 
many  years  previously,  with  a  view  to  some  advantage  which  he  considered 
would  accompany  such  discontinuance,  apart  from  the  piofits  to  be  made  Irom 

39 


610         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 


Gaines  v.  Green  Pond  Iron  Mining  Co. 


the  sale  of  the  mineral,  I  doubt  whether  a  succeeding  tenant  for  life  could 
properly  treat  that  as  an  open  mine." 

In  Elias  v.  Griffith,  L.  R.,  (^  App.  Gas.)  Jfi5,  Lord  Selborue 
says: 

"  Upon  the  questions  of  law  which  were  argued  at  the  bar,  I  think  it  unneces- 
sary to  make  more  than  two  remarks.  The  first  is,  that  I  am  not  at  present 
prepared  to  hold  that  there  can  be  no  such  thing  as  an  open  mine  or  quarry, 
which  a  tenant  for  life,  or  other  owner  of  an  estate  impeachable  for  waste,  may 
work,  unless  the  produce  of  such  mine  or  quarry  has  been  previously  carried 
to  market  and  sold.  No  doubt  if  a  mine  or  quarry  has  been  worked  for  com- 
mercial profit,  that  must,  ordinarily,  be  decisive  of  the  right  to  continue  work- 
ing ;  and,  on  the  other  hand,  if  minerals  have  been  worked  or  used  for  some 
definite  and  restricted  purpose  (e.  (/.,  for  the  purpose  of  fuel  or  repair  to  some 
particular  tenements),  that  would  not  alone  give  any  such  right.  But  if  there 
has  been  a  working  and  use  of  minerals  not  limited  to  any  special  or  restricted 
purpose,  I  find  nothing  in  the  older  authorities  to  justify  the  introduction  of 
sale  as  a  necessary  criterion  of  the  difference  between  a  mine  or  quarry  which 
is,  and  one  which  is  not,  to  be  considered  open  in  a  legal  sense.  None  of  the 
dicta  which  are  to  be  found  in  some  of  the  more  modern  cases  (each  of  which 
turned  upon  its  own  particular  circumstances)  can  have  been  intended  to  intro- 
duce a  condition  or  qualification  not  previously  known,  into  the  law  of  mines. 

"  The  other  observation  which  I  desire  to  make  is,  that  when  a  mine  or 
quarry  is  once  open,  so  that  the  owner  of  an  estate  impeachable  for  waste  may 
work  it,  I  do  not  consider  that  the  sinking  a  new  pit  on  the  same  vein,  or 
breaking  ground  in  a  new  place  on  the  same  rock,  is  necessarily  the  opening 
of  a  new  mine  or  quarry ;  and  for  this,  authority  is  to  be  found  in  the  cases 
which  were  cited  at  the  bar,  of  Clavering  v.  Clavering,  Bagot  v.  Bagot,  and 
Lord  Cowley  v.  Wellesley." 

In  Elias  v.  GriffiiU,  L.  R.  {8  Ch.  Div.)  521,  Lord  Cotton 
remarked  that 

"To  enable  a  termor,  or  tenant  for  life  punishable  for  waste,  to  work  mines, 
it  must  be  shown  that  the  owner  of  the  inheritance,  or  those  acting  by  liis 
authority,  have  commenced  the  working  of  the  mines  with  a  view  to  making 
a  profit  from  the  working  and  sale  of  what  is  part  of  the  inheritance.  When 
this  is  established,  though  no  profit  has  in  fact  been  made,  the  mine  is  open  in 
such  a  sense  as  to  justify  the  continuance  of  the  working  by  a  termor." 

The  case  of  Clavering  v.  Clavering,  2  P.  Wms.  388,  which 
recognizes  the  right  of  the  life  tenant  to  open  new  pits  or  shafts. 


6  Stew.]  MARCH  TERM,  1881.  611 

Gaiues  v.  Green  Pond  Iron  Mining  Co. 

for  the  working  of  au  old  vein  of  coal,  has  never  been  overruled 
in  the  English  courts. 

These  citations  show  that,  in  England,  the  life  tenant  has  a 
right  to  use  a  mine  for  his  own  profit,  where  the  owner  of  the 
fee,  in  his  lifetime  has  opened  it,  even  though  he  may  have  dis- 
continued working  upon  it  for  a  long  period  of  years. 

The  rule  by  which  the  right  of  the  life  tenant  is  to  be  tested  is 
not  the  length  of  time  that  may  have  elapsed  since  the  last  work- 
ing of  the  mines,  but  it  depends  upon  whether  the  owner  of  the 
fee  merely  discontinued  the  work  for  want  of  capital,  or  because 
it  did  not  prove  profitable,  or  for  any  other  like  reason,  or 
whether  he  abandoned  it  with  an  executed  intention  to  devote 
tiie  land  to  some  other  use. 

A  miere  cessation  of  work,  for  however  long  a  period,  will  not 
defeat  the  life  tenant^s  right,  but  an  abandonment  for  a  day,  with 
a  view,  in  the  language  of  Lord  Romilly,  "  to  some  advantage  to 
the  property,  which  the  fee  owner  considered  would  accompany 
such  discontinuance,  apart  from  the  profits  to  be  made  from  the 
sale  of  the  mineral,"  would  extinguish  any  claim  on  the  part  of 
the  life  tenant.  If  the  fee  owner  should  sink  a  shaft,  and  after- 
wards erect  a  dwelling-house  over  it,  or  if  he  should  fill  it  up 
and  devote  the  space  to  agricultural  purposes,  it  would  indicate, 
so  clearly,  his  intention  to  devote  his  estate  to  otlier  uses  than 
mining,  that  the  life  tenant  could  not  base  any  right  upon  the 
prior  opening. 

The  distinction  between  mere  cessation  of  use  and  such  an 
abandonment  as  has  been  adverted  to,  is  recognized  in  the  cases 
in  this  country. 

In  the  New  York  supreme  court,  a  widow  was  held  to  be  dow- 
able  of  a  bed  of  iron  ore,  although  the  openings  which  had  been 
made  by  the  husband  had  been  partly  filled  up  and  the  work 
discontinued  in  his  lifetime.      Coates  v.  Cheever,  1  Cow.  4-^0. 

Chief  Justice  Shaw,  in  Billings  v.  Taylor,  10  Pick.  4-60, 
expresses  the  like  view : 

"  AVhatever  doubts  may  have  been  formerly  entertained,  it  seems  now  to  be 
well  settled  that  a  widow  is  entitled  to  dower  in  sucli  mines  and  quarries  as 
were  actually  opened   and  used  during  the  lifetime  of  the  husband,  and  it 


612         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Gaines  v.  Green  Pond  Iron  Mining  Co. 

makes  no  difference  wliether  the  husband  continued  to  work  them  to  the 
period  of  his  death,  or  whether  they  have  been  continued  since  his  death,  by 
the  heir  or  his  assignee." 

Stoughton  v.  Leigh,  Coates  v.  Cheever  and  Billings  v.  Taylor, 
are  cited  with  approbation  by  Chancellor  Green,  in  Reed  v.  Reed, 
1  a  E.  Gr.  2JI^. 

The  American  cases  have  modified  the  law  of  waste,  to  adapt 
it  to  the  circumstances  of  a  new  and  growing  country,  in  order 
to  encourage  the  tenant  for  life  in  making  a  reasonable  use  of 
wild  and  undeveloped  lands.  Hastings  v.  OriLnckleton,  3  Yeates 
861 ;  Findlay  v.  Smith,  6  Munf.  18^;  Ballentine  v.  Poyner,  2 
Hayw.  110 ;  Neel  v.  Neel,  7  Harris  323 ;  Irwin  v.  Covode,  12 
Harris  162. 

In  Neel  v.  Neel,  a  coal  mine  had  been  opened  and  worked  for 
family  use,  and  for  the  benefit  of  the  neighbors,  but  a  very 
inconsiderable  quantity  had  been  taken  out.  In  that  case,  Judge 
Lowrie  said  ; 

"  It  seems,  in  this  case,  that  the  author  of  the  gift  had  sometimes  sold  coal 
out  of  the  pits,  but  I  do  not  conceive  this  to  be  material.  It  is  suflBcient  that 
he  opened  them  and  derived  any  profit  from  them,  even  if  it  were  only  private. 
And  the  decisions  refer  to  coal  mines,  iron  mines  &c.,  and  the  tenant  for  life 
may  work  them,  even  though  the  working  of  them  may  have  been  discon- 
tinued before  the  death  of  him  through  whom  the  estate  comes,  and,  if  neces- 
sary to  the  proper  working  of  them,  to  make  new  openings  in  the  ground." 

In  support  of  these  views  he  cites  the  English  and  American 
cases,  and  expresses  himself  without  reference  to  the  statute  of 
1848. 

Chancellor  Kent  says : 

"  The  American  doctrine  on  the  subject  of  waste  is  somewhat  varied  from 
the  English  law,  and  is  more  enlarged  and  better  accommodated  to  the  cir- 
cumstances of  a  new  and  growing  country."    4  Comm.  76. 

The  cases  referred  to  will  show  a  strong  inclination  to  amplify 
the  privileges  of  the  life  tenant. 

In  a  country  like  this,  where  there  are  such  vast  bodies  of 
unimproved   lauds,  which  would  otherwise  lie  dormant  in  the 


6  Stew.]  MARCH  TERM,  1881.  613 

Gaines  v.  Green  Pond  Iron  Mining  Co. 

hands  of  the  life  teuaut,  public  policy  requires  that  the  doctrine 
of  waste  should  be  liberalized,  and  the  decisions  have  uniformly 
been  in  that  direction. 

The  present  case  illustrates  the  hardship  of  a  close  rule  in 
favor  of  the  fee.  The  life  estate  vested  in  1860,  and  there  is  an 
expectancy  of  twenty  years  more  of  this  life.  A  construction  of 
the  law  which  locks  up  the  land  from  all  beneficial  use  for  so 
long  a  period,  and  gives  the  life  owner  only  the  privilege  of  pay- 
ing the  land  tax,  should  not  be  favored. 

When  the  property  is  unimproved  land,  not  adaptable  to  any 
other  beneficial  use  than  that  of  mining,  the  right  of  the  life 
tenant  to  use  it  reasonably  for  such  purpose,  has  some  support  in 
the  adjudications  in  this  country,  and  is  certainly  not  without 
reason  to  uphold  it. 

To  maintain  the  right  of  the  appellant  in  this  case,  it  is  not 
necessary  to  broaden  the  rule  to  that  extent. 

The  openings  in  this  case  were  such  as,  under  the  English 
cases,  will  establish  the  right  in  the  life  estate  to  pursue  the 
workings  upon  the  veins  which  had  been  opened. 

It  is  sufficient  to  show  that  openings  wei'e  made  and  ore  taken 
out  with  a  view  to  profit,  and  it  is  wholly  immaterial  whether 
the  ore  was  used  in  the  manufacture  of  copperas  or  for  some 
other  commercial  purpose. 

The  evidence  shows  a  mere  cessation  of  the  work,  not  such  an 
abandonment,  in  the  legal  sense  of  that  term,  as  will  defeat  the 
right  of  the  life  tenant.  The  length  of  time  during  which  cessa- 
tion continued  is  immaterial,  so  long  as  the  fact  of  abandonment 
is  not  established. 

The  decree  of  the  chancellor,  so  far  as  it  denies  the  right  of 
the  appellants  to  work  the  veins  of  ore  upon  which  the  openings 
had  been  made  in  the  lifetime  of  the  owner  of  the  fee,  and  so  far 
as  it  enjoins  such  work,  should  be  reversed,  and  in  other  respects 
affirmed. 

Decree  unanimously  reversed. 


614         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 


Bacon  v.  Bonhain. 


John  S.  Bacon,  apiiellant, 

V. 

Belford  M.  Bonham  et  al.,  respondents. 

1.  A  court  of  equity  will  give  effect  to  an  assignment  of  an  expected  legacy 
executed  in  the  lifetime  of  the  testator,  if  made  for  a  valuable  consideration. 

2.  In  such  case,  absence  of  fraud,  good  consideration  and  adequacy  of  price, 
Bhould  be  proved,  affirmatively,  by  the  party  claiming  the  benefit  of  the  as- 
bignment. 


On  appeal  from  a  decree  of  the  chancellor,  reported  in  Bacon 
V.  Bonhxim,  12  C.  E.  Ch\  W9. 

Mr.  W.  E.  Potter,  for  appellant. 

I.  The  deed  put  ia  evidence  by  the  appellee,  purporting  to 
grant,  convey  and  assign  a  legacy  expected  by  Belford  M.  Bon- 
ham, under  and  by  virtue  of  the  will  of  John  Bonham,  having 
been  executed  during  the  lifetime  of  the  said  testator,  is  void  as 
a  conveyance  or  mortgage,  both  at  law  and  in  equity,  and  passed 
no  rights  in  and  to  the  legacy  therein  mentioned  to  the  respondent, 
Elisha  Bonham. 

(a)  Because  it  purports  to  assign  or  mortgage  a  naked  possi- 
bility. 

(6)  Because  the  assignment  of  a  possibility  or  expected  legacy, 
during  the  lifetime  of  the  testator,  is  against  public  policy. 
Boydton  v.  Hubbard,  7  Mass.  112. 

II.  Said  deed  being  void  ab  initio,  as  to  said  pretended  as- 
signment or  mortgage,  no  alleged  possession  under  it  could 
alter  its  force  or  strengthen  the  title  of  the  assignee  therein 
named. 

III.  There  is  no  proof  in  the  case  of  possession  under  said 
assignment. 

Mr.  J.  J.  Reeves  and  Mr.  A.  Browning,  for  respondents. 


6  Stew.]  MARCH  TERM,  1881.  615 

Bacon  v.  Bonham. 
The  opinion  of  the  court  was  delivered  by 

Parker,  J. 

The  appellant,  who  was  complainant  in  the  court  of  chancery, 
was  a  judgment  creditor  of  Belford  M.  Bonham. 

He  filed  his  bill  against  Belford  M.  Bonham  and  Elisha  Bon- 
ham. Elisha  was  made  a  defendant  individually,  and  also  as 
executor  of  Jehu  Bonham,  deceased. 

The  prayer  of  the  bill  is  for  a  decree,  subjecting  the  proceeds 
of  a  legacy  given  to  Belford  M.  Bonham  by  the  will  of  Jehu 
Bonham,  and  alleged  to  be  in  the  hands  of  Elisha  Bonham,  to 
the  payment  of  the  judgments  held  by  the  complainant  against 
Belford. 

Jehu  Bonham  executed  his  last  will  on  the  16th  day  of  De- 
cember, A.  D.  1869,  and  died  on  the  25th  day  of  March,  a.  d. 
1875. 

The  will  directed  Elisha  Bonham,  the  executor  therein  named, 
to  sell  all  the  property  and  put  the  money  at  interest. 

The  interest  was  to  be  paid  to  the  widow  of  the  testator  dur- 
ing her  life,  and  at  her  death,  one-third  of  the  estate  was  to  go 
to  Belford.  She  died  before  the  testator.  It  is  this  legacy 
which  the  appellant  seeks  to  have  applied  to  the  payment  of  his 
judgments. 

The  judgments  were  obtained  before  the  will  took  effect.  The 
executions  issued  thereon  were  returned  "wholly  unsatisfied,  no 
property  having  been  found  whereon  to  levy." 

The  claim  of  the  appellant  was  resisted  by  Elisha  Bonham, 
on  the  ground  that  before  the  filing  of  complainant's  bill,  the 
legacy  given  Belford  by  the  will,  had  been  assigned  to  him  by 
Belford,  for  a  valuable  consideration. 

The  testimony  proves  that  after  the  execution  of  the  will  and 
before  the  death  of  the  testator,  both  Belford  and  Elisha  knew 
its  contents. 

The  testator  had  told  Belford  what  disposition  he  had  made 
of  his  property.  Soon  after  the  execution  of  the  will,  the  testa- 
tor became  hopelessly  insane.  Upon  inquisition  had,  he  was 
found   to  be  a  lunatic,  and  Elisha  having  been  appointed  his 


616        COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Bacon  v.  Bonham. 

guardian,  the  will,  with  his  other  papers,  catne  into  possession  of 
Elisha  before  testator's  death. 

Under  these  circumstances,  Elisha  loaned  and  advanced  to 
Belford,  in  the  lifetime  of  testator,  the  sum  of  $2,000,  and  took 
from  Belford  an  assignment,  to  that  extent,  of  his  interest  in  the 
expected  legacy.  This  assignment  was  executed  by  Belford  on 
the  27th  day  of  March,  a.  d.  1874. 

After  reciting  the  clause  of  the  will  in  which  the  legacy  is 
given  to  Belford,  the  assignment  purports,  for  the  consideration 
of  $2,000,  to  transfer  to  Elisha  all  the  right  of  Belford  in  the 
estate  and  prospective  estate  of  Jehu  Bonham,  which  he  has,  or 
will  have,  to  the  amount  of  $2,000  and  interest  thereon. 

That  Belford  received  the  $2,000  from  Elisha,  at  or  before 
the  execution  of  the  assignment,  is  not  questioned. 

No  fraud  is  alleged  in  the  bill,  nor  is  there  any  attempt  to 
prove  fraud,  nor  even  inadequate  consideration.  lu  fact,  it  ap- 
pears from  the  evidence,  affirmatively,  that  there  was  no  fraud  in 
the  transaction,  and  also  that  the  proceeds  of  the  legacy  given  to 
Belford  by  the  will,  did  not  amount  to  $2,000. 

The  assignment  was  given  to  the  attorney  of  the  parties,  with 
directions  to  have  it  recorded  after  testator's  death.  After  his 
death  and  before  the  filing  of  the  bill  by  complainant,  Belford 
directed  the  i-ecording  of  the  assignment,  which  was  at  once 
done. 

The  contention  of  the  appellant  is,  that  the  assignment  is  not 
valid,  because  the  legacy  it  purports  to  transfer  was,  at  the  time, 
a  mere  expectancy,  and  not  the  subject  of  assignment,  and  this  is 
the  question  for  decision  in  this  cause. 

Courts  of  equity  give  effect  to  assignments  of  contingent  in- 
terests and  expectancies.  A  contingent  legacy  may  become  the 
subject  of  assignment  or  contract  of  sale. 

Even  a  naked  possibility,  or  expectancy  of  an  heir  to  his  an- 
cestor's estate,  may  become  the  subject  of  a  contract  of  sale,  if 
made  honafde  for  a  valuable  consideration,  and  will  be  enforced 
in  equity  after  the  death  of  the  ancestor.  2  Story's  Eq.  Jur.,  § 
1040  ;  see,  also,  note  in  2  Story's  Eq.  under  §  IO4.O  ;  Spencers 
Eq.  Jur.  §  852  &e. 


6  Stew.]  MARCH  TERM,  1881.  617 

Bacon  v.  Bonham. 

It  is  incumbeat  upon  the  party  dealing  with  the  beir,  or  ex- 
pectant, to  show  affirmatively  that  there  was  no  fraud,  and  that 
an  adequate  consideration  was  paid.     1  Story's  Eq.  Jur.  §  336. 

A  deed  of  assignment  of  oil,  head-matter  &c.,  which  might  be 
caught  and  brought  home  in  a  certain  ship,  was  held  valid  in 
equity  as  to  the  future  cargo,  and  if,  after  the  return  of  the  ship, 
the  master  delivered  the  cargo  to  the  assignee,  his  title  could 
not  be  defeated  by  a  judgment  creditor  of  the  assignor  who 
took  the  cargo  under  an  execution.  Langton  v.  Horton,  1 
Hare  54,9. 

An  assignment,  for  a  valuable  consideration,  of  demands  hav- 
ing no  actual  existence,  but  which  rest  in  expectancy  merely,  is 
valid  in  equity  as  an  agreement,  and  takes  effect  as  an  assign- 
ment, where  the  demands  intended  to  be  assigned  are  subse- 
quently brought  into  existence.  Field  v.  Mayor  of  N.  F.,  2 
Seld.  179. 

In  a  possibility  which  the  parties  to  the  agreement  expected 
would,  and  which  afterwards  did,  in  fact,  ripen  into  an  actual 
reality,  an  equitable  title  vests  in  the  assignee.     lb. 

In  Cooh  V.  Field,  15  Q.  B.  4-60,  it  was  held  that  an  agree- 
ment in  writing  reciting  that  A  was  expecting  to  become  seized 
in  fee  of  an  estate,  on  the  death  of  S.,  as  devisee  under  her  will 
and  contracting  to  sell  all  the  possibility  and  expectancy  of  A  in 
the  estate,  was  not  illegal  nor  contravening  public  policy. 

Under  authority  of  the  cases  cited,  the  right  of  Elisha  Bon- 
ham, by  means  of  the  assignment  to  him  of  the  proceeds  of  the 
expected  legacy  given  to  Belford  Bonham,  was  perfect  at  the 
time  of  filing  the  bill  in  this  cause.  A  valuable  consideration 
had  been  paid  by  him ;  it  appears,  affirmatively,  that  there  was 
no  fraud,  the  testator  was  dead,  the  proceeds  of  the  legacy  had 
been  reduced  to  the  possession  of  the  assignee ;  and  further,  it  is 
proved  that  after  the  death  of  the  testator,  the  precedent  contract 
of  assignment  was  confirmed  by  the  assignor,  in  directing  the 
paper  recorded. 

Where,  after  a  contemplated  event  occurs,  the  party  affirms  the 
precedent  contract,  courts  of  equity  will  hold  it  binding.  1 
Story's  Eq.  Jur.  §  34S. 


618        COURT  OF  ERRORS  AND  APPEALS.   [33  Eq. 

Poulson  V.  National  Bank  of  Frenchtown. 

The  decree  of  the  chancellor  dismissing  the  bill  is  affirmed, 
with  costs. 

Decree  unanimoiLsly  affirmed. 


"William  J.  Poulson  and  Israel  Poulson,  administrators 
&c.,  appellants, 

V. 

The  National  Bank  of  Frenchtown  et  al.,  respondents. 

Any  person  interested  in  an  estate  as  creditor,  or  otherwise,  has  a  right  to 
file  exceptions  in  the  orphans  court  to  the  account  of  a  discharged  or  removed 
administrator. 


On  ap|)eal  from  a  decree  of  the  ordinary,  reported  in  Poulson 
V.  Nat.  Bk.  of  Frenchtown,  6  Stew.  Eq.  250. 

Messrs.  J.  G.  Shipman  &  Son,  for  appellants. 

I.  The  appellants  insist  that  the  respondents,  as  alleged  credit- 
ors of  the  said  Samuel  B.  Hud  nut,  deceased,  had  no  right,  by 
the  statute,  to  except  to  the  accounts  of  the  removed  adminis- 
trators, that  no  one  but  the  new  administrators  could  do  that, 
and  that  the  ordinary  erred  in  holding  that  the  respondents  had 
the  right  to  file  the  exceptions,  and  that  the  decree  of  the  orphans 
court  of  the  county  of  Hunterdon  refusing  to  strike  out  the 
exceptions  filed  by  the  said  respondents,  severally,  was  right. 
McDonald  v.  O'Connell,  10  Vr.  318;  Rev.  781  §§  IW,  130. 

II.  There  was  no  proof  that  the  respondents  were  creditors, 
and  no  proof  could  be  offered  to  the  court  that  they  were  credit- 
ors. The  appellants  denied  that  they  were  creditors.  They 
alleged  that  they  were  not  indebted  to  the  Northampton  County 
Savings  Bank  at  all,  but  insisted  that  that  institution  was  in- 
debted to  them,  and  they  wanted  to  contest  their  claim,  and  they 
further  insisted  that  to  allow  an  alleged  creditor  to  come  in  and 


6  Stew.]  MARCH  TERM,  1881.  619 

Poulson  V.  National  Bank  of  Frenchtown. 

stand  on  the  record  as  a  creditor,  and  contest  the  appellant's 
account,  would  be  conclusive  evidence  that  it  was  a  creditor,  and 
the  appellants  would  not'be  able  to  contradict  the  record. 

Messrs.  J.  T.  Bird,  J.  N.  Voorhees  and  E.  R.  Bulloch,  for 
respondents. 

I.  The  appellants  are  administrators  of  Samuel  B.  Hudnut, 
deceased.  They  were  removed  from  office  by  the  orphans  court 
of  the  county  of  Hunterdon,  and  directed  by  said  court  to  file  an 
account.  Having  done  so,  the  respondents,  as  creditors  of  said 
Hudnut,  filed  exceptions  to  it,  and  the  question  presented  is, 
whether  the  creditors  of,  or  other  persons  interested  in,  an  estate, 
may  file  exceptions  to  the  account  of  a  removed  or  discharged 
executor,  or  whether  this  right  of  exception  is  confined  to  the 
newly  appointed  administrator. 

The  statute  {Rev.  775  §  105)  expressly  states  that  "  any  person 
interested  in  the  settlement  of  the  account  of  any  executor,  ad- 
ministrator &c.,  may,  by  himself  or  his  attorney,  make  exception 
to  said  account." 

Also  section  one  hundred  and  six,  same  page,  confers  same 
power  on  the  court.  Rev.  771,  §  86 ;  2  Wms.  on  Exrs.  1775, 
1776,  1778 ;  Schenck  v.  Sohenck,  Pen.  562 ;  Davichon  v.  David- 
son, 2  Harr.  169  ;  Rogers  v.  Rogers,  3  Wend.  505 ;  Hawley  v. 
James,  5  Paige  318. 

The  opinion  of  the  court  was  delivered  by 

Pakker,  J. 

This  is  an  appeal  irom  a  decree  of  the  ordinary  affirming  a 
decree  of  the  orphans  court  of  the  county  of  Hunterdon. 

The  appellants  were  administrators  of  Samuel  B.  Hudnut, 
deceased.  On  the  21st  day  of  January,  a.  d.  1878,  an  order 
was  made  by  the  orphans  court  discharging  said  administrators 
and  directing  them  to  account.  On  the  28th  day  of  the  same 
month,  Edward  P.  Conklin  was  appointed  administrator  in  the 
place  of  appellants. 


620        COURT  OF  ERRORS  AXD  APPEALS.    [33  Eq. 

Poulson  V.  Kational  Bank  of  Frenchtowii. 

Subsequently,  the  appellants  filed  their  account,  and  the  re- 
spondents, claiming  to  be  creditors  of  the  estate,  filed  exceptions 
thereto.  The  appellants  then  moved  the  orphans  court  to  strike 
out  the  exceptions  upon  two  grounds. 

First.  Because  it  did  not  appear  that  the  exceptants  were 
creditors  of  the  estate.     And 

Secondly.  Because,  if  creditors,  they  had  no  legal  right  to 
exce[)t  to  the  account  of  removed  or  discharged  administrators. 

The  orphans  court  refused  to  strike  out  the  exceptions.  There- 
upon an  appeal  was  taken  to  the  prerogative  court,  where  the 
decree  of  the  orphans  court  was  affirmed. 

In  the  exceptions  filed  by  the  respondents,  they  claimed  to  be 
creditors.  If,  upon  investigation,  it  had  appeared  that  they  were 
not  creditors,  and  not  interested  in  the  estate,  their  right  to  inter- 
meddle, would  doubtless  have  been  denied  by  the  orphans  court, 
and  the  exceptions  dismissed. 

But,  by  at  once  appealing  from  the  order  refusing  to  strike  out 
the  exceptions,  the  appellants  prevented  inquiry  into  that  ques- 
tion by  the  orphans  court.  There  cannot  be  a  reversal  on  this 
ground. 

The  second  and  chief  question  for  decision  is,  whether  credit- 
ors have  the  right  to  file  exceptions  to  accounts  presented  to 
the  orphans  court  for  settlement,  by  discharged  or  removed 
administrators.  The  contention  on  behalf  of  the  appellants  is, 
that  in  such  case,  none  but  the  newly  appointed  administrator 
can  except. 

The  one  hundred  and  fifth  section  of  the  orphans  court  act 
provides  that  any  person  interested  in  the  settlement  of  the 
account  of  any  executor,  administrator,  guardian  or  trustee,  may 
appear  and  make  exceptions.  The  language  of  the  section  is 
broad,  and  applies  to  the  case  under  consideration.  No  other 
section  of  the  act  limits  its  application. 

It  is  true  that  the  one  hundred  and  twenty-ninth  and  one 
hundred  and  tiiirtieth  sections  of  the  orphans  court  act,  which 
provide  for  the  appointment  of  administrators  in  place  of  those 
discharged  or  remt)ved,  give  jjower  to  those  newly  appointed  to 
demand,  receive  and   recover  from  their  predecessors,  the  prop- 


6  Stew.]  MARCH  TERM,  1881.  621 

Poiilson  V.  National  Bank  of  Freaclitown. 

erty  and  assets  of  the  estate,  and  make  it  the  duty  of  those  dis- 
charged or  removed  to  settle  their  accounts  and  deliver  to  their 
successors  the  property  of  the  estate,  and  pay  over  the  balance  of 
the  money  in  their  hands  found  to  be  due  upon  settlement.  But 
these  sections  are  not  inconsistent  with  the  one  hundred  and  fifth 
section.  The  object  of  creditors,  in  filing  exceptions,  is  not 
to  obtain  directly,  from  discharged  or  removed  administrators, 
the  property  or  money  of  the  estate  in  their  hands,  but  to  ascer- 
tain what  property  is  in  their  hands,  and  the  true  amount  of 
money  they  should  pass  over  to  the  newly  appointed  adminis- 
trators. To  do  this,  any  person  interested  in  the  estate  may 
intervene. 

In  this  case,  either  the  present  administrator,  or  the  creditor, 
or  both,  could  file  exceptions. 

The   orphans  court  did  right  in  refusing  to  strike  out  the 
exceptions  filed  by  respondents. 

The  decree  of  the  ordinary  is  affirmed,  with  costs. 

Decree  unanimously  affirmed. 


Theodore  Johnson,  et  al., 

V. 

The  Board  op  Commissioners  of  Somerville. 


Mr.  S.  B.  Ransom,  for  appellant. 

Mr.  J.  J.  Bergen,  for  respondent. 

Per  Curiam. 

This  decree  unanimously  affirmed,  for  the  reasons  given  by 
the  Vice-Chancellor  in  the  case  below.     6  Stew.  Eq.  152. 


622         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 


Mayor  and  Aldermen  of  Jersey  City  v.  Gardner. 


The  ?.Iayor  and  Aldermen  of  Jersey  City,  appellants, 


Henry  W.  Gardner  et  al.,  respondents. 

1.  Lands  condemned  by  a  municipal  corporation  and  in  public  use  for  a  street 
before  payment  of  award  of  damages,  will  not,  at  the  instance  of  the  owner, 
be  restrained  in  their  use  by  injunction,  where  a  remedy  at  law  exists,  either 
by  ejectment  or  by  suit  for  the  award. 

2.  Where  lands  are  so  taken,  and  the  duty  to  pay  an  award  therefor,  and  the 
right  of  the  owner  to  be  paid,  is  complete,  the  owner  may  maintain  an  action 
for  the  award  if  the  statute  directing  proceedings  for  condemnation  provide 
no  special  mode  of  enforcing  payment. 

3.  Eights  which  inhere  in  the  party  seeking  aid  in  court,  must  determine  the 
jurisdiction,  and  not  those  of  the  defendant. 


On  appeal  from  a  decree  of  the  chancellor,  reported  in  Gard- 
ner V.  Jersey  City,  5  Stew.  Eq.  586. 

Daring  the  years  1867  and  1868,  the  corporation  of  the  "Town 
of  Bergen,  in  the  county  of  Hudson,"  now  represented  by  the 
appellants,  under  the  provisions  of  its  charter  touching  the  laying 
out  of  public  streets,  opened  within  its  territory  a  public  street, 
in  extension  of  Jackson  avenue.  In  doing  so,  certain  lands  in 
said  town  in  the  then  ownership  of  George  H.  Sackett,  were 
taken  and  condemned  as  a  part  of  the  street  so  laid  out.  In 
these  proceedings  an  award  of  $960.76  was  made  to  the  owners 
for  the  value  of  the  lands  and  the  damages  above  the  assessment 
for  benefits  to  their  other  property.  These  proceedings  were  rati- 
fied by  proper  authority,  and  the  street  was  duly  established, 
opened  to  the  public  use  and  a  sewer  built  in  it.  The  lands  taken 
for  the  street  and  other  lauds  adjoining,  belonging  to  Sackett, 
were  conveyed  to  complainants.  The  award  has  not  been  paid 
to  either  Sackett  or  complainants,  although  demanded  by  both. 
Under  the  charter,  by  virtue  of  which   these   proceedings  for 


6  Stew.]  MAECH  TERM,  1881.  623 

Mayor  and  Aldermen  of  Jersey  City  v.  Gardner. 

condemnation  were  had,  payment  of  the  award  was  directed  to 
be  made  to  the  owners  by  the  corporation,  and  upon  such  pay- 
ment being  made  the  title  to  the  lands  vested  in  the  city. 

Under  this  state  of  facts  the  complainants  filed  their  bill, 
praying  that  the  appellants  be  enjoined  from  the  further  use  of 
the  complainants'  lands  and  of  the  sewer  built  therein,  unless 
it  pay  the  complainants  the  said  award  and  interest  within  such 
short  time  as  the  chancellor  should  limit. 

The  answer  admits  the  essential  facts.  It  sets  up  certain  acts 
of  the  complainants  subsequent  to  the  condemnation  proceedings, 
which,  it  avers,  work  a  dedication  of  the  lands  to  the  public  as  a 
street,  and  thereby  estops  them  from  setting  up  any  title  which 
they  may  have  against  the  public  use  of  said  lands  for  a  street. 
Against  the  complainants'  rights  to  recover  the  award,  the  statute 
of  limitations  is  claimed  to  be  a  bar.  It  denies  that  the  com- 
plainants present  any  ground  for  relief  in  a  court  of  equity,  and 
claims  that  they  are  afforded  an  adequate  and  complete  remedy 
at  law. 

The  chancellor,  upon  the  pleadings  and  proofs,  decreed  that 
unless  payment  be  made  by  the  appellant  of  the  award  and  in- 
terest to  complainants,  within  thirty  days  from  service  of  a  copy 
of  the  decree,  the  city  be  perpetually  enjoined  from  using,  or 
permitting  to  be  used,  the  said  land  for  street  or  sewer  purposes. 

Ml'.  A.  L.  MeDermott  and  Mr.  Leon  Abbeti,  for  appellants. 

I.  The  facts  of  this  case  are  stated  in  the  opinion  of  the  chan- 
cellor in  the  suit  brought  by  Gardner  and  others  against  Jersey 
City. 

II.  The  real  question  at  issue  between  the  parties  is,  whether 
or  not  there  was  a  dedication  of  the  land  in  question  for  the  pur- 
poses of  a  public  street.  The  award  was  made  over  six  years 
ago,  and  if  a  suit  had  been  brought  upon  that,  the  city  could  have 
pleaded  the  statute  of  limitations,  and  successfully  defended 
against  it.  The  complainant,  however,  claims  that  as  the  award 
was  not  paid  to  him,  there  was  no  legal  taking  of  the  land  under 


62i         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Mayor  and  Aldermen  of  Jersey  City  v.  Gardner. 

the  case  of  Mayor  &c.  of  Jersey  City  v.  Fitzpatrich ,  7  Tv.  ISO, 
and  that  he  is,  therefore,  entitled  to  the  relief  he  prays  for  in 
this  cas'e  under  the  same  case  in  chancery,  3  Stew.  Eq.  97. 

III.  The  city  claims  that  this  street  was  dedicated  to  public 
use  under  the  authority  of  the  case  of  Clark  v.  City  of  Elizabeth^ 
11  Vr.  172.  The  city  also  calls  attention  to  the  case  of  Staie^ 
Kiernan  pros.  v.  Jersey  City,  11  Vr.  JfJ83.  The  city  also  refers 
to  the  case  of  Price  v.  Inhabitants  of  Plainfield,  11  Vr.  608,  for 
the  purpose  of  showing  that  the  word  "street"  written  on  a  map, 
and  the  sale  of  lands  by  it,  operate  conclusively  as  a  dedication. 
In  that  case  it  was  the  dedication  of  a  park  by  the  word  being 
written  on  the  block  on  a  map  of  said  property. 

IV.  The  testimony  upon  which  the  city  relies  to  establish  the 
dedication  is  the  following  [discussing  it]. 

V.  The  city  claims  that  the  complainants  and  the  owners  of 
the  property  have,  for  the  last  ten  or  twelve  years,  assented  to 
the  opening  of  the  street,  which  has  existed  as  an  open  street  all 
that  time ;  that  their  only  claim  since  1868  has  been  for  the 
award;  that  they  could  have  brought  suit  at  any  time  within  six 
years  after  the  award,  for  the  payment  of  the  award ;  that  they 
abandoned  the  claim  to  the  land  and  relied  upon  the  award  since 
1868 ;  that  in  1879,  even  if  they  never  had  done  so  before,  the 
complainants  made  a  conclusive  dedication  of  the  street  to  the 
public  by  the  making  of  the  map,  selling  lands  by  reference  to 
it,  and  receiving  ten  per  cent,  of  the  purchase-money  on  such 
sales,  and  that  this  action  of  theirs,  in  connection  with  the  recog- 
nition of  Jackson  avenue  in  the  deed,  settles  the  case  as  a  dedi- 
cation conclusive  upon  the  complainants ;  that  if  a  suit  had  been 
brought  upon  the  award,  the  city  could  have  pleaded  the  statute 
of  limitations;  that  if  a  suit  had  been  brought  in  ejectment,  for 
the  land  taken,  the  city  could  have  pleaded  the  dedication  suc- 
cessfully, and  that  an  attempt  to  compel  tlie  city  to  pay  the  award 
or  surrender  the  land  by  a  suit  in  equity,  is  an  attempt  to  create 
a  right  which  does  not  exist  at  law  in  behalf  of  the  complainants. 


6  Steav.]  march  term,  1881.  625 

Mayor  and  Aldermen  of  Jersey  City  v.  Gardner. 

Mr.  G.  Collins,  for  respondents. 

I.  The  decree  was  within  the  power  of  the  court  of  chancery. 
Bonaparte  v.  Camden  and  Amhoy  R.  R.  Co.,  Bald.  W5 ;  Steve^is 
V.  P.  &  N.  R.  R.  Co.,  5  C.  E.  Gr.  126;  Metiler  v.  E.  &  A.  R. 
R.  Co.,  10  C.  E.  Gr.  2U;  M.  &  E.  R.  R.  Co.  v.  Hudson  Tun- 
nel R.  R.  Co.,  10  C.  E.  Gr.  384.;  Morris  Canal  &c.  Co.  v. 
Jersey  City,  11   C.  E.  Gr.  294;  Pierpont  v.  Harrisville,  9  W. 

Va.  215. 

II.  The  suit  is  barred  by  no  statutory  or  other  limitation. 
Loweree  v.  City  of  Newark,  9  Vr.  156. 

III.  There  was  no  dedication.  One  cannot  dedicate  what  he 
does  not  own.  Wash,  on  Ease.  186 ;  Bailey  v.  Cojjeland,  Wi'ight 
(Ohio)  150;  United  States  v.  Chicago,  7  How.  185,  Clark  v. 
City  of  Elizabeth,  11  Vr.  17 4. 

The  power  of  the  trustees  to  sell  as  they  did  has  been  ques- 
tioned. If  they  had  no  power  to  sell,  they  had  none  to  dedi- 
cate. 

The  legal  title  to  the  land  (if  the  trust  deed  be  void)  is  vested 
in  them  by  the  general  assignment,  and  they  can,  at  any  time, 
give  the  required  bonds ;  or,  if  they  refuse,  the  court  of  chancery 
can  appoint  trustees  to  succeed  them  in  the  interest  of  the 
assignors'  creditors.  Savll  v.  Reeves,  2  Gr.  Ch.  84  ;  Alpaugh  v. 
Roherson,  12  C.  E.  Gr.  96;  Wilt  v.  Franklin,  1  Binn.  502; 
Cunningham  v.  Freeborn,  11  Wend.  241 ;  Funk  v.  Newcomer, 
10  Md.  301;  Price  v.  Parker,  11  Iowa  144;  Rev.  p.  37  §  3. 

Knapp,  J. 

The  principal  question  presented  for  consideration  is  whether 
a  court  of  equity  should  entertain  jurisdiction  of  the  cause  on  the 
facts  disclosed  in  the  case. 

That  courts  of  equity  do  not  entertain  jurisdiction  of  causes 
where  there  exists,  at  law,  a  remedy  plain,  adequate  and  com- 
plete to  redress  the  wrong  complained  of,  stands  prominent 
amongst  the  rules  which  serve  to  define  the  boundary  of  juris- 
diction between  courts  of  law  and  courts  of  equity.  The  various 
recognized  heads  of  equity  are  but  a  classification  of  subjects  in 

40 


626         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Mayor  and  Aldermen  of  Jersey  City  v.  Gardner. 

which  legal  remedies  aie  wanting  or  afford  imperfect  and  incom- 
plete justice.     Storey's  Eq.  Jur.  §  33. 

The  rule  as  applied  to  the  remedy  by  injunction — the  subject 
in  hand — has  abundant  recognition  and  support  in  the  decided 
cases  in  this  state.  M.  &  E.  R.  R.  Co.  v.  Pruden,  5  C.  E.  Gr.  530  ; 
Highee  v.  C.  &  A.  R.  R.  Co.,  5  C.  E.  Gr.  435;  Carlisle  v. 
Cooper,  6  C.  E.  G)\  576 ;  Stevens  v.  Erie  Railway  Co.,  6  C.  J^. 
Gr.  £59;  Morris  Canal  Co.  v.  Fagan,  7  C.  E.  Gr.  430,  436, 
437. 

The  leainied  chancellor  in  this  case  recognizes  it  in  his  opinion. 
Chancellor  Zabriskie  says,  in  Stevens  v.  Erie  Railway  Co. :  "  In- 
junctions do  sometimes  issue  to  restrain  constantly-repeated 
trespasses,  requiring  a  continued  succession  of  suits,  but  not 
where  ejectment  will  restore  the  complainant  to  all  his  rights." 

The  controversy  usually,  in  these  cases,  is  not  over  the  existence 
of  such  rule,  but  over  the  quality  and  extent  of  the  remedy  to  be 
found  in  the  law  court,  as  applied  to  the  case  made  by  the  com- 
plainant. 

The  case  here  is,  that  lands  of  the  complainants  below  were 
taken  by  the  town  of  Bergen,  a  corporation  now  represented  by 
the  appellant,  for  a  public  street ;  that  they  were  appropriated  to, 
and  continued  in,  that  ase  by  the  corporation,  without  making 
payment  of  the  compensation  lawfully  awarded  to  the  owner, 
when  the  charter  under  which  such  lands  were  condemned  re- 
quires payment  to  be  made  before  the  title  can  vest  in  the  cor- 
poration. In  other  words,  that  the  town  took  possession  of  com- 
plainants' lands,  and  still  holds  them  without  lawful  right  or 
authority. 

For  such  a  wrong  the  action  of  ejectment  generally  lies,  the 
result  of  such  remedy  being  to  give  to  the  plaintiff,  if  successful, 
the  possession  of  his  lands,  and,  under  present  procedui'e,  dam- 
ages for  their  detention.  This  gives  as  ample  and  complete 
redress  as  is  within  the  power  of  any  court  to  afford  a  suitor. 
The  chancellor  concedes  that  the  complainant  had  this  remedy 
at  will. 

In  the  case  of  Fitzpatrick  v.  Jersey  City,  7  Vr.  120,  the  su- 
preme court  sustained  a  recovery  in  ejectment  for  lands  taken 


6  Stew.]  MARCH  TERM,  1881.  627 

Mayor  and  Aldermen  of  Jersey  City  v.  Gardner. 

for  the  same  street,  holding  that,  under  the  charter  of  the  town 
of  Bergen,  the  city  had  neither  title  to  nor  right  of  possession  of 
lands  taken  for  a  street  until  payment  of  the  award  therefor  was 
actually  made.  The  case  involved  the  interpretation  of  i)r()- 
visions  contained  in  the  thirty-third  section  of  the  charter  of 
1S64,  {P.  L.  p.  4£0). 

The  section  provides  for  paying  or  tendering  the  award  for 
lands  to  the  owner,  and  enacts  that  after  filing  the  receipt  of  the 
owner  <&c.,  "  the  said  lands  shall  be  vested  in  the  town,  and  tht; 
town  officers  may  proceed  with  said  improvement."  Some  doubt 
has  been  thrown  on  this  case  by  a  seeming  conflict  between  it 
and  the  decision  in  this  court  in  Lehigh  Valley  R.  R.  v.  MoFar- 
lan,  4-  Stew.  Eq.  706,  and  the  series  of  cases  construing  the  charter 
of  the  Morris  Canal  Company,  which  the  McFarlan  case  followed. 
The  sixth  section  of  that  charter  contains  provisions  in  respect  to 
the  title  to  lauds  and  water  required  for  the  canal,  closely  resem- 
bling those  found  in  the  Bergen  act.  In  that  case,  it  was  he-Id 
that  the  provisions  for  prepayment  did  not  abridge  the  present 
right  of  the  company  to  take  and  appropriate  to  its  use  lauds 
and  waters  and  hold  them  against  the  legal  owner,  although  the 
title  to  them  does  not  finally  vest  until  compensation  be  made. 
And  in  Den  v.  Morris  Canal,  4-  Zah.  587,  ejectment  was  held 
not  to  lie  for  such  lands.  It  is  to  be  remembered  that  in  the 
charter  of  the  company  express  provisions  are  found,  giving 
authority,  after  survey  filed,  to  take  possession  of  and  use  such 
lands  and  waters,  subject  to  such  compensation  as  is  directed  to 
be  made  in  the  act.  The  charter  of  Bergen  contains  no  such 
express  provisions.  There  is  room,  therefore,  for  distinguishing 
between  the  cases.  But  whether  the  same  rule  may  not  be  ap- 
plied here,  rested  upon  implied  powers  in  the  town  charter  to 
take  possession,  is  a  question  of  practical  moment,  because, 
among  other  reasons  of  the  manifest  inconvenience  and  impolicy 
of  making  the  right  to  possess  and  hold  property  in  its  streets  to  de- 
pend on  mere  matter  of  parol,  namely,  the  fact  of  paying  money, 
and  not  upon  the  recorded  proceedings  in  condemnation,  coupled 
with  tiie  open  possession  and  public  use  of  them,  and  especially 
so  if  there  exists  a  right  of  suit  for  the  award.     The  legislative 


628         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Mayor  and  Aldermen  of  Jersey  City  v.  Gardner. 

iuteut,  in  the  absence  of  clear  expression,  to  permit  public  streets 
paved,  sewered  and  built  upon,  to  be  seized  by  the  adjoining  land- 
holder because  of  the  neglect  of  the  public  agents  to  perform 
their  duty  of  payment,  may  admit  of  doubt.  The  point  was  so 
little  considered  in  the  argument  that  the  question  ought  not 
now  to  be  conclusively  decided  unless  the  exigencies  of  this  case 
require  it.  I  think  they  do  not.  If  the  action  be  maintainable, 
it  affords  an  ample  remedy ;  if  it  be  not,  then  the  theory,  as  will 
hereaftei'  be  noticed,  upon  which  jurisdiction  in  this  case  was 
retained,  falls.  And  whether  maintainable  or  not,  the  plaintiff 
in  a  case  like  this  has,  irrespective  of  it,  under  our  legal  methods, 
a  full  and  ample  remedy  at  law  of  the  nature  aimed  at  by  the 
complainant  in  this  suit.  When  the  conditions  have  arisen  on 
which  it  is  made  the  duty  of  the  city  to  pay,  and  the  right  of  the 
owner  to  be  paid,  an  ascertained  amount  of  compensation,  the 
owner  may  have  a  suit  at  law  for  its  recovery,  or,  at  his  instance, 
payment  may  be  enforced  by  mandamus.  And  such  right  of 
suit  is  not  dependent  upon  express  authority  in  the  act  to  sue;  it 
exists  if  no  other  statutory  mode  of  obtaining  payment  is  pre- 
sci'ibed.  So  long  as  there  remains  in  the  municipal  body  con- 
demning lauds  under  the  power  of  eminent  domain,  the  right  of 
withdrawal  from  the  condemnation  proceedings,  there  can  be  no 
such  right  of  action,  but  the  liberty  to  so  retire  ceases  upon  the 
legal  adjustment  of  the  amount  to  be  paid,  and  the  acceptance  by 
the  public  body  of  the  property.  In  re  Commissioners  d'C,  2 
Vr.  73;  Mahon  v.  Freeholders  of  Hudson,  10  Vr.  6^,0;  O'Neil 
V.  Freeholders  of  Hudson,  12  Vr.  161. 

Final  ascertainment  of  compensation  to  the  land-owner,  and 
approval  of  the  assessment  by  the  corporation  entering  upon  the 
possession  of  the  lands  and  devoting  them  to  the  intended  public 
use,  show,  unequivocally,  such  an  acceptance. 

The  situation  of  the  complainants,  in  respect  to  their  right  of 
suit  for  the  award,  may  be  briefly  stated  thus:  The  public 
authorities  of  the  town  have,  under  competent  legal  right,  con- 
demned their  lands  for  a  public  street ;  commissioners  have,  in 
the  manner  prescribed  by  law,  assessed  the  amount  of  compensa- 
tion which  the  town  shall  pay  and  the  owner  receive ;  the  town 


6  Stew.]  MARCH  TERM,  1881.  629 


Mayor  and  Aldermen  of  Jersey  City  v.  Gardner, 


authorities  have  duly  approved  the  award,  and  have  entered  upon 
the  possession  of  the  lands  and  subjected  them  to  the  use  for 
which  they  were  condemned.  The  duty  to  pay,  and  the  right  to 
be  paid,  are  then  complete.  Standing  upon  this  ground,  there 
being  no  prescribed  mode  under  the  statute  in  which  payment  is 
to  be  enforced,  the  right  of  suit  is  complete  as  upon  implied 
assumpsit,  upon  the  established  principle  that  where  there  exists 
a  duty  to  pay  the  law  raises  a  promise  to  do  so. 

Judge  Dillon  says  where  the  owner's  right  to  damage  is  com- 
plete or  vested,  he  may,  in  proper  cases,  sue  the  municipality 
therefor,  or  have  a  mandamus  to  compel  it  to  pay  or  to  proceed 
to  collect  the  assessment  which  constitutes  the  fund  from  which 
payment  must  come.    Dillon  on  Mun.  Corp.  §  ^7P,  and  cases  cited. 

The  "  proper  cases  "  for  a  suit,  as  I  understand  that  author, 
are  where  no  other  specific  mode  of  redress  is  prescribed  in  the 
act  which  directs  the  improvement. 

But  this  charter  goes  further,  and  in  express  terms  commands: 

"That  upon  completing  the  report  of  the  commissioners  of  assessment, 
assessing  the  value  of  the  lands  so  taken,  and  the  damages  thereby,  the  city 
treasurer  shall  tender  and  pay  to  the  owner  of  said  lands  the  amount  of  such 
assessment  due  him." 

There  is  thus  created  a  statutory  obligation  on  the  town  to  pay 
the  sum  awarded.  To  deny  this  duty  is  to  deny  the  authority  of 
the  statute.  Duty  to  pay  money,  however,  arising,  creates  civil 
obligations  which  courts  of  law  are  constantly  enforcing  by  their 
judgments. 

It  is  contended  against  the  complainants'  right  of  suit  for  the 
money  awarded,  that  payment  of  the  money  being  a  condition 
precedent  to  the  vesting  of  title  in  the  municipality,  no  suit  will 
lie,  because  the  lands  are  not  yet  taken.  It  is  sufficient  to  say 
that  the  act  does  not  vest  the  duty  to  pay  the  allotted  compensa- 
tion upon  any  such  condition,  but,  on  the  contrary,  it  orders  it  to 
be  made  before  the  title  could,  by  the  terms  of  the  act,  vest  in  the 
corporation.  Upon  payment  made,  whether  voluntarily  or  by 
force  of  a  judgment,  the  lands  will,  for  the  purposes  intended, 
vest  in  the  corporation. 


630         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Mayor  and  Aldermen  of  Jersey  City  v.  Gardner. 

The  provision  deferring  the  vesting  of  the  legal  title  until  the 
award  be  actually  paid,  was  intended  to  serve  the  interest  of  the 
land-owner,  and  it  would  be  a  perversion  of  the  legislative  intent 
to  allow  it  to  operate  as  an  impediment  to,  or  deprivation  of  his 
legal  right  to  compensation  by  suit.  The  complainants  were  then 
armed  with  a  right  of  action  to  recover  the  money  awarded  them 
for  their  lands,  with  the  interest.  This  legal  remedy,  witiiout 
tlie  ejectment,  possesses  larger  efficiency  with  less  inconvenience 
and  expense,  tiian  does  the  alternate  decree  which  the  chancellor 
was  able  to  afford.  While  the  decree  restrains  the  city  and  the 
public  from  the  use  of  the  lands  for  a  street,  it  leaves  the  owner 
out  of  possession.  As  a  decree  for  the  award,  payment  is  ojJtioual 
with  the  party  charged. 

The  chief  grouud  for  claiming  jurisdiction  in  this  case  is,  that 
the  complainant's  remedy  by  ejectment  is  too  large,  in  that  it 
gives  more  than  a  court  of  equity  would,  in  the  interest  of  defend- 
ant's .permit  the  complainants  to  enjoy.  Cognizance  is,  therefore, 
taken  of  this  cause,  not  because  of  the  equitable  rights  of  the 
complainants  who  seek  that  forum,  but  because  of  equities  of  the 
defendants  resting  on  the  contingency  of  a  judgment  in  ejectment 
against  it. 

I  think  it  is  a  general  rule  that  tiie  character  of  the  rights 
which  inhere  in  the  person  seeking  redress  in  court  determines 
the  tribunal  which  he  must  resort  to  for  their  adjudication  and 
enforcement.  And  as  a  rule,  recourse  can  be  had  to  a  court  of 
equity  only  when  the  suitor  himself  comes,  clothed  with  such 
rights  as  give  him  standing  there.  Jurisdiction  is  not  gained 
through  the  defendant's  status.  Exceptions  may  exist  to  the 
rule,  and  the  common  foreclosure  proceeding  may,  in  some  of  its 
features,  indicate  such  an  exception.  There,  the  owner  of  the 
legal  title  has  standing  in  equity  because  of  the  wide  and  well- 
recognized  difference  between  the  form  of  the  contract,  viz.,  a 
conveyance  in  fee  defeasable  upon  a  condition  subsequent,  and  that 
which,  within  the  true  intent  and  meaning  of  the  parties,  it  was 
designed  to  be — a  real  security  for  a  debt.  The  mortgagee  was 
let  in  after  default,  to  have  the  lands  sold  to  pay  his  debt  imme- 
diately, or  to  call   upon  the  mortgagor  to  redeem  his  estate  pres- 


6  Stew.]  MARCH  TERM,  1881.  631 

Mayor  and  Aldermen  of  Jersey  City  v.  Gardner. 

€nt]y,  or,  in  default  thereof,  forever  to  be  foreclosed  from 
redeeming  the  same.  All  the  rights  of  the  parties  rest  in  a  sin- 
gle contract. 

But  this  case  is  not  exceptional,  and  whatever  equitable  rights 
the  defendants  may  have,  whether  present  or  contingent,  upon  a 
judgment  in  ejectment  against  it,  assuming  the  action  to  be 
maintainable,  does  not  aflPord  ground  for  the  transfer  of  the  com- 
plainant's clear  legal  rights  to  the  equity  court  for  adjudication. 

The  equities  of  the  defendants  could  not  arise  for  consideration 
except  upon  a  judgment  in  ejectment,  and  in  such  action  it  would 
be  the  right  of  the  city  to  be  heard  in  defence.  Here  the  defend- 
ants claim  that  there  was  a  subsequent  dedication  of  the  lands. 
This  is  a  matter  in  pals,  determinable  upon  intent  as  evidenced 
by  the  acts  and  declarations  of  the  owner.  That  there  was  no 
conclusive  act  of  dedication  shown  in  this  case  is  clear,  but  that 
is  not  a  requisite  measure  of  proof,  and  before  the  consequences 
which  a  judgment  in  ejectment  would  force  upon  the  city  are  to 
be  encountered,  it  should  be  permitted  to  have  such  defence 
heard  in  the  law  court. 

It  can  scarcely  be  questioned  that  the  fact  of  subsequent  dedi- 
cation being  found,  while  it  would  in  no  measure  affect  the  vested 
right  of  the  complainants  to  be  paid  their  award,  would  defeat  a 
recovery  in  the  ejectment  suit.  But  further,  under  the  forty- 
third  section  of  the  ejectment  act  {Rev.  332),  it  would  be  the 
right  of  the  defendants,  under  a  suit  in  ejectment,  to  pay  the 
amount  of  the  award  at  any  1;ime  before,  and  possibly  during  the 
trial,  and  so  defeat  the  recovery  of  the  lands.  The  defendants' 
equities  might,  therefore,  never  arise  to  be  enforced. 

The  plain  purpose  of  this  suit  was  to  enforce  payment  of  the 
damages  awarded  the  complainants  by  the  commissioners,  and  in 
justice  they  ought  to  be  paid  by  the  city,  but  such  payment 
should,  as  it  may,  be  enforced  where  such  suits  are  normally 
prosecuted. 

The  jurisdiction  cannot  be  maintained  as  a  measure  for  the 
prevention  of  irreparable  injury.  All  has  been  done  that  is  pro- 
posed by  the  city  to  be  done.  No  such  injury  is  imminent  or 
contemplated. 


632         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 


Mayor  and  Aldermen  of  Jersey  City  v.  Gardner. 


Nor  is  the  bill  maintainable  as  preventing  multiplicity  of  suits 
or  avoiding  circuity  of  actions. 

Where  the  court  takes  hold  of  a  cause  under  some  ground  of 
equity,  as  for  discovery  or  account,  it  is  within  its  power  to  retain 
the  cause  and  finally  dispose  of  it  to  avoid  multiplicity  of  suits. 
So,  too,  in  trespasses  of  the  character  mentioned  in  the  case  of 
Stevens  v.  Erie  Railway,  above  referred  to.  But  this  case  can- 
cannot  stand  in  either  category. 

I  deem  it  unnecessary  to  consider  or  decide  whether  the  statute 
of  limitations  affecting  simple  contracts  applies  to  an  action  on  an 
award  for  lands  made  under  charter  provisions  like  those  of  the 
Bergen  act  of  incorporation,  or  whether  it  is  to  be  regarded  as  a 
demand  upon  statute,  because,  whether  applicable  or  not,  could 
not  vary  the  principles  upon  which  jurisdiction  must  be  decided. 

For  the  reasons  above  given,  I  think  the  suit  was  wrongly 
brought  in  the  court  of  chancery,  and  the  bill  should  have  been 
dismissed.     I  shall  therefore  vote  to  reverse  the  decree. 

For  reversal — Beasley,  C.  J.,  Depue,  Dixon,  Knapp, 
Magie,  Paeker,  Reed,  Scudder,  Van  Syckel,  Clement, 
Cole,  Green — 12. 

For  affirmance — Dodd — 1. 


John  T.  Johnston 

V. 

Charles  G.  Hyde. 

1.  "Wliere  the  complainant  is  entitled  to  an  easement  of  the  flow  of  the 
waters  of  a  natural  stream  through  an  artificial  raceway,  constructed  on  the 
lands  of  the  defendant,  which  the  defendant  has  wrongfully  interfered  with,  a 
court  of  equity,  on  final  hearing,  may,  by  a  mandatory  injunction,  compel  the 
defendant  to  restore  the  raceway  to  its  former  condition. 

2.  Where,  upon  the  construction  of  a  deed,  it  appears  to  have  been  the  in- 
tention of  the  parties  to  make  a  grant  of  a  certain  quantity  of  water  measured 


6  Stew.]  MARCH  TERM,  1881.  633 


Johnston  v.  Hvde. 


by  an  existing  dam  and  raceway  on  lands  of  the  grantor,  the  grantee  is  not 
bound  to  use  the  water  in  a  particular  manner,  though  it  be  mentioned  in  tlie 
deed  that  the  water  privileges  were  "  for  the  purpose  of  a  saw-mill."  He  mav 
use  the  water  in  a  different  manner  or  in  a  different  place,  or  increase  the  ca- 
pacity of  the  machinery  propelled  by  it,  without  affecting  his  rights,  provided 
the  quantity  used  is  not  increased,  and  the  change  does  not  prejudice  the  rights 
of  others. 

3.  Where  the  grant  is  of  a  water-power,  and  it  be  left  in  doubt  whether  the 
kind  of  mill  mentioned  indicates  the  quantity  of  water  and  measures  the  ex- 
tent of  the  power  intended  to  be  granted,  or  the  grant  is  of  water  to  drive  a 
particular  kind  of  a  mill,  the  former  construction  will  be  favored, 

4.  If  the  right  to  an  easement  of  the  flow  of  water  has  been  derived  by 
grant,  it  may  be  extinguished  by  a  possession  of  the  servient  tenement  adverse 
to  the  easement  for  the  full  period  of  twenty  years,  but  will  not  be  lost  by  mere 
non-user. 

5.  The  owner  of  an  easement  may  lose  his  right  to  it  by  acquiescence,  as 
where  he  has  discontinued  the  use  of  the  easement  under  circumstances  indi- 
cating his  intention  to  renounce  it,  and  the  owner  of  the  servient  tenement, 
relying  on  his  conduct,  has  been  induced  to  make  expenditures  in  altering  and 
improving  his  premises,  which  expenditures  would  be  rendered  useless  if  the 
owner  of  the  easement  should  resume  the  use  of  it.  Under  such  circumstances 
in  some  cases  the  easement  has  been  considered  in  equity  as  extinguished, 
though  the  discontinuance  of  the  use  of  it  has  been  for  a  period  of  less  thaa 
twenty  years.     Cases  of  this  class  depend  on  the  doctrine  of  equitable  estoppel. 

6.  In  1824,  E.  was  the  owner  of  a  saw-mill  driven  by  the  waters  of  a  natural 
stream,  diverted  from  the  stream,  and  carried  to  his  mill  by  means  of  a  dam  and 
raceway  on  the  lands  of  D.  In  May,  1824,  E.  conveyed  to  D.  a  moiety  of  the 
saw-mill  and  race,  together  with  the  equal  hiilf  part  or  moiety  of  the  water  priv- 
ileges and  water  courses  belonging  to  said  saw-mill,  "  the  dam  to  be  raised  no 
higher  than  it  now  is,  without  the  consent  of  the  parties,  and  the  said  raceway 
to  be  and  remain  as  it  now  stands."  On  the  same  day,  D.  conveyed  to  E.  the 
equal  undivided  half  part  or  moiety  of  the  dam  and  pond  situate  on  his  lands, 
"with  the  one  equal  moiety  of  water  and  water  privileges  thereto  belonging,  for 
the  purpose  of  a  saw-mill,  "  the  dam  to  be  raised  no  higher  than  it  is  at  this 
time,  without  the  consent  of  the  parties."  In  June,  1824,  D.  conveyed  to  W. 
his  moiety  of  the  saw-mill  and  the  water-courses,  together  with  the  privilege,  for 
the  said  saw-mill,  of  the  water,  dam  and  race  on  his  lands,  "the  dam  to  remain 
as  it  now  stands  *  *  *  and  the  race,  dam  and  pond  to  be  and  re- 
main where  it  now  stands,  and  not  to  be  altered."  In  1835,  W.  conveyed  to 
E.  the  moiety  of  the  mill  and  water  i^rivileges  he  acquired  from  D.  The 
complainant  and  defendant,  respectively,  acquired  title  under  E.  and  D. — Held, 

(1)  That  the  grant  was  of  an  easement  of  the  right  to  the  flow  of  so  much 
of  the  waters  of  the  stream  as  the  dam  then  standing  would  divert,  and  to  the 
use  of  the  raceway  as  it  then  was,  as  the  conduit  by  which  the  water  should 
be  carried  to  the  mill,  and  also,  as  incident  thereto,  the  right  to  cleanse  and 


634         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 


Johnston  v.  Hyde. 


repair  the  raceway  and  dam,  and  to  do  -whatever  might  be  necessary  and 
proper  to  keep  them  in  a  condition  fit  for  the  purposes  for  which  they  were 
designed.  ^ 

(2)  That  a  change  in  the  location  of  the  water-course,  and  the  substitution 
of  a  box  aqueduct,  enclosed  and  covered  over,  and  of  less  capacity  for  the 
open  raceway  through  the  servient  tenement,  was  an  injury  to  the  complain- 
ant's easement,  for  which  the  complainant  might  have  relief  in  equity. 

7.  The  owner  of  the  dominant  tenement  has  no  property  or  rights  in  the 
servient  tenement  except  such  as  are  incident  to  the  enjoyment  of  his  ease- 
ment. The  owner  of  the  servient  tenement  can  do  no  act  on  his  lands  which 
interferes  substantially  with  the  easement,  or  with  those  rights  which  are  es- 
sential to  the  full  enjoyment  of  its  benefits  ;  but  the  utmost  extent  of  the  duty 
which  rests  upon  the  owner  of  the  servient  tenement,  is  not  to  alter  its  con- 
dition so  as  to  interfere  with  the  enjoyment  of  the  easement.  How  far  the 
Civner  of  the  servient  tenement  is  interdicted  from  acts  of  ownership  on  his 
lands  will  depend  upon  the  nature  and  qualities  of  the  easement. 

8.  The  chancellor  decreed  that  the  complainant  was  entitled  to  an  easement 
of  an  open  racewaj'  through  the  defendant's  lands,  of  a  certain  width  and 
depth.  He  ordered  that  a  box  aqueduct  placed  therein  should  be  removed, 
and  the  raceway  should  be  restored  to  its  former  condition,  and  that  the  de- 
fendant should  be  perpetually  enjoined  from  obstructing  the  complainant  in 
the  enjoyment  of  his  easement. — Held,  in  affirming  the  decree, 

(1)  That  the  decree  did  not  interdict  the  defendant  entirely  from  acts  of 
dominion  over  the  strip  of  land  on  which  the  raceway  was  located ;  that  the 
defendant  might  throw  bridges  over  the  raceway  to  connect  the  two  par- 
cels into  which  his  lands  were  severed  by  the  raceway,  and  generally  might 
exercise  over  the  premises  such  acts  of  ownership  as  would  not  substantially 
interfere  with  the  complainant's  enjoyment  of  his  rights  therein ;  and 

(2)  That  when  the  defendant  shall  have  obeyed  the  mandatory  part  of  the 
decree,  whether  the  acts  he  shall  do  in  the  future  are  an  interference  with  the 
complainant's  rights,  is  a  question  that  will  arise  when  the  inquiry  arises 
whether  the  prohibitions  of  the  injunction  have  been  disregarded. 


On  appeal  from  the  court  of  chancery. 

The  parties  are  owners  of  adjoining  tracts  of  land  through 
which  Green  Brook,  a  natural  water-course,  flows.  On  tlie 
premises  owned  by  Hyde  is  a  mill  driven  by  the  waters  of  the 
stream  diverted  from  the  natural  bed  of  the  stream,  and  carried 
to  the  mill  by  means  of  a  dam  and  raceway.  The  complainant's 
mill  lot  contains  twelve  acres  of  land,  and  is  part  of  the  premises 


6  Stew.]  MARCH  TERM,  1881.  635 

Jolinston  V.  Hyde. 

conveyed  to  him  by  Mary  L.  and  Sarah  L.  Hotchkiss,  on  tlie 
23d  of  August,  1869.  North  of  his  land,  the  defendant,  John- 
ston, is  the  owner  of  the  lands  through  which  the  raceway  ex- 
tends, up  to  and  including  the  place  where  the  dam  is  located. 
The  length  of  the  raceway  on  the  lands  of  Johnston,  from  the 
dam  until  it  reaches  the  lands  of  Hyde,  is  about  eleven  hundred 
feet. 

In  1872,  Johnston  substituted  for  the  raceway  a  wooden  box 
two  feet  and  eight  inches  wide,  and  one  foot  and  three  inches 
high,  ten  hundred  and  sixty  feet  in  length,  and  having  an  effec- 
tive fall  of  about  five  inches.  This  box  was  enclosed  on  the  top 
and  filled  in  on  the  sides  with  earth,  and  covered  with  soil ;  and 
over  part  of  it  Johnston  constructed  a  macadamized  road  from 
his  house  to  his  stable. 

In  1874,  Hyde  entered  on  Johnston's  premises  and  attempted 
to  raise  the  gate  Johnston  had  placed  at  the  mouth  of  the  trunk 
near  the  dam.  Johnston  then  filed  a  bill  to  enjoin  Hyde  from 
interfering  with  the  wooden  aqueduct.  Hyde,  after  answering 
the  bill,  in  May,  1875,  filed  a  cross-bill  for  the  purpose  of  ascer- 
taining and  establishing  his  rights  in  the  premises. 

The  complainant,  Hyde,  in  his  cross-bill,  states  his  right  to  be 
of  "the  easement  in  the  said  premises  of  said  Johnston  ;  to  have 
the  said  pond  kept  up  to  the  height  existing  in  the  year  1824; 
to  have  the  said  dam  and  raceway  maintained  in  the  same  man- 
ner as  then  existing ;  and  to  have  the  free  and  unobstructed  use 
of  the  said  water  and  the  power  thereby  to  be  derived,  for  the 
said  mill,  with  the  right,  in  addition,  of  entering  upon  the  said 
premises  upon  the  banks  of  the  said  raceway,  and  over  the  same, 
through  its  whole  length,  and  to  the  said  pond  upon  the  premises 
now  of  the  said  Johnston,  for  the  purpose  of  all  necessary  re- 
pairs, and  tlie  removal  of  any  obstructions  to  the  free  and  unob- 
structed fall  and  flow  of  the  said  water." 

The  prayer  of  the  cross-bill  is,  that  it  may  be  decreed  that  the 
complainant  is  entitled  to  the  easement  of  an  open  raceway 
through  the  premises  of  the  defendant,  leading  from  the  pond 
to  the  mill,  and  to  the  maintenance  of  the  pond  and  dam  thereto 
annexed,  so  that  the  water  in  the  said  pond  may  be  of  the  same 


636         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 


Johnston  v.  Hyde. 


height  at  which  it  was  on  the  8th  day  of  May,  1824;  ami  that 
the  said  raceway  shall  lead  said  water  along  the  same  course,  and 
be  of  the  same  depth  and  width  as  it  then  was ;  and  that  it  may 
be  ascertained  and  decreed  what  such  average  width  and  depth 
was  and  should  be,  and  what  should  be  the  height  of  tiie  water 
in  the  said  pond ;  that  the  said  box  aqueduct  may  be  decreed  to 
be  a  nuisance,  and  may,  by  the  decree  of  the  court,  be  ordered  to 
be  abated  and  removed,  and  the  said  raceway,  at  the  expense  of 
said  defendant,  be  returned  to  the  condition  in  which  it  was  at 
the  date  aforesaid,  and  that  the  defendant  may  be  perpetually 
enjoined  from  continuing,  by  means  of  said  box  aqueduct,  the 
gate  therein,  or  otherwise,  any  obstruction  to  the  full  and  free 
enjoyment  by  the  complainant  of  his  said  easement,  or  to  his 
coming  upon  the  premises  of  defendant  to  repair  or  clean  out 
said  raceway,  or  abate  any  nuisance,  accidental  or  otherwise,  to 
his  rights  in  the  premises,  or  prevent  any  obstruction  to  his  en- 
joyment of  said  easement. 

The  chancellor,  upon  final  hearing  upon  the  pleadings  and 
proofs,  dismissed  the  original  bill,  and,  upon  the  cross-bill,  made 
a  decree  that  the  complainant  therein  ^vas  entitled  to  the  right 
and  easement  in  the  defendant's  lands  of  an  open  raceway 
through  the  same,  leading  from  the  pond  to  the  mill  of  the  com- 
plainant, and  to  the  maintenance  of  the  said  pond,  and  the  dam 
thereto  annexed,  so  that  the  water  should  be  kept  at  the  same 
height  that  it  was  on  the  8th  of  May,  1824;  that  the  raceway 
should  lead  along  the  same  course,  and  be  of  the  same  depth  and 
width  as  it  then  was ;  and  that  the  average  width  of  the  said 
raceway  shall  be  fourteen  feet  at  the  top  and  nine  feet  at  the 
bottom,  and  the  average  depth  four  feet ;  and  that  the  height  of 
the  water  in  said  pond  should  be  four  feet.  The  decree  further 
declared  that  the  box  aqueduct  was  unlawful,  and  directed  that 
it  should  be  abated  and  removed,  and  that  the  raceway  should 
be  restored  to  the  condition  in  which  it  was  in  May,  1875,  when 
the  cross-bill  was  filed ;  and  that  Johnston  and  all  parties  to 
claim  under  him  be  perpetually  enjoined  from  continuing,  by 
means  of  said  box  aqueduct,  the  gate  therein,  or  otherwise,  any 
obstruction  to  the  full  and  free  enjoyment  by  the  said  Hyde  of 


6  Stew.]  MARCH  TERM,  1881.  637 

Johnston  v.  Hvde. 

his  said  easement,  or  to  his  coming  upon  the  premises  of.  the  said 
Johnston  to  repair  or  clean  out  the  same,  or  to  abate  any  nuis- 
ance, accidental  or  otherwise,  to  his  said  rights  in  the  premises, 
or  to  prevent  any  obstruction  to  his  enjoyment  of  said  easement. 
From  this  decree  Johnston  has  appealed. 

Mr.  R.  W.  De  Forest  and  Mr.  B.  Williamson,  for  appellants. 

Mr.  J.  B.  Coward  and  Mr.  C.  Parker,  contra. 

The  opinion  of  the  court  was  delivered  by 

Depue,  J. 

Prior  to  1824  there  was  a  mill  on  the  complainant's  premises, 
on  the  site  of  the  present  structure,  which  was  driven  by  the 
waters  of  the  stream,  diverted  therefrom  by  means  of  a  dam,  and 
conveyed  to  the  mill  through  an  open  raceway.  The  dam  and 
raceway,  at  that  time,  were  located  on  or  near  the  site  of  the  dam 
and  raceway  as  they  were  when  the  defendant  began  his  improve- 
ments in  1872. 

In  1824,  Elijah  Shotwell  was  the  owner  of  the  mill,  and  of 
the  tract  of  land  on  which  it  was  situate,  which  then  contained 
forty-one  and  ninty-three  hundredths  acres.  Next  to  this  tract 
on  the  north  was  a  tract  of  land  containing  thirty-one  and  sixty- 
five  hundredths  acres,  owned  by  Daniel  Shotwell.  The  dam  was 
on  the  last- mentioned  tract,  as  was  also  so  much  of  the  raceway 
as  extended  to  the  line  of  Elijah  Shotwell's  lands. 

Elijah  Shotwell  acquired  title  to  the  tract  of  forty-one  and 
ninty-three  hundi-edths  acres  in  1809,  by  conveyance  from 
Elijah  Pound.  Daniel  Shotwell  acquired  his  title  to  the  tract  of 
thirty-one  and  sixty-five  hundredths  acres  in  1822,  by  con- 
veyance from  Asa  F.  Randolph.  By  a  deed  bearing  date  on  the 
8th  day  of  May,  1824,  Elijah  Shotwell  made  a  conveyance  in 
fee  to  Daniel  Shotwell,  in  which  the  premises  conveyed  are  de- 
scribed as  "all  that  one  equal  half  of  a  tract  or  parcel  of  land  and 
premises,  being  the  one  equal  half  part  or  moiety  of  a  saw-mill 
and  race,  together  with  the  one  equal  half  part  or  moiety  of  the 


638         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Johnston  v.  Hyde. 

water  privileges  and  water-courses  belonging  to  said  saw-mill, 
erected  on  the  said  Elijah  Shotwell,  with  the  privilege  of  a  walk 
on  tiie  race-bank  to  said  saw-mill  from  the  dam  that  is  erected 
for  the  said  saw-mill  as  it  now  stands ;  the  dam  to  be  raised  no 
higher  than  it  now  is,  withont  the  consent  of  the  parties,  and  the 
said  race  to  be  and  remain  as  it  now  stands." 

By  a  deed  bearing  date  on  the  same  8th  day  of  May,  1824, 
Daniel  Shotwell  made  a  conveyance  to  Elijah  Shotwell  of 
premises  described  as  "all  that  equal  half  of  a  tract  or  parcel  of 
laud  and  premises,  being  the  one  equal,  undivided  half  part  or 
moiety  of  the  dam  and  pond  erected  on  the  said  Daniel  Shot- 
well,  together  with  the  one  equal  moiety  of  the  water  and  water 
privileges  thereunto  belonging,  situated  on  Green  Brook,  for  the 
purpose  of  a  saw-mill  erected  on  the  said  Elijah  Shotwell,  as  it 
now  stands,  the  dam  to  be  raised  no  higher  than  it  is  at  this 
time  without  the  consent  of  the  parties." 

By  these  two  conveyances  of  May  8th,  1824,  Elijah  and  Dan- 
iel became  joint  owners  of  the  mill  and  of  the  water  privileges, 
including  the  pond,  dam  and  raceway — each  continuing  to  be 
the  owner  in  severalty  of  the  adjacent  lands.  On  the  23d  of 
June,  1824,  Daniel  conveyed  his  moiety  of  the  mill,  with  its 
water  privileges,  to  William  B.  Shotwell,  who  in  turn,  by  a  deed 
dated  December  10th,  1835,  conveyed  the  same  to  Elijah,  who 
thus  became  the  owner  in  severalty  of  the  mill  and  its  water 
privileges.  Elijah  was  then  the  owner  of  the  tract  of  forty-one 
and  ninety-three  hundredths  acres,  which  he  purchased  of 
Pound  in  1809,  including  the  mill,  with  such  water  privileges  as 
were  granted  by  the  deeds  of  May  8th,  1824.  In  the  deed  from 
Daniel  to  William  P.  Shotwell,  made  in  June,  1824,  for  his 
moiety  of  the  mill,  there  is  an  express  grant  of  "  all  the  water- 
courses, together  with  all  the  privileges  of  the  race  above  and 
the  race  below,  that  the  said  Daniel  Shotwell  is  possessed  of, 
the  lands  of  the  said  Daniel  Shotwell  and  Nathan  Vail, 
and  also  the  privileges  for  the  said  saw-mill,  of  the  water,  dam 
and  race  on  the  lands  that  the  said  Daniel  Shotwell  purchased 
of  Asa  F.  Randolph,  *  *  *  and  the  dam  to  remain  as  it 
now  stands,  *  *  *  and  t}je  race,  dam  and  pond  to  be  and 
remain  where  it  now  stands,  and  not  to  be  altered." 


6  Stew.]  MARCH  TERM,  1881.  639 

Johnston  v.  Hyde. 

The  complainant,  when  this  bill  was  filed,  was  the  owner  of 
twelve  acres  of  the  tract  of  forty-one  and  ninety-three  hun- 
dredths acres,  including  the  mill  and  its  water  rights,  having 
acquired  his  title  by  divers  mesne  conveyances  from  Elijah.  The 
defendant  is  the  owner  of  the  residue  of  the  tract  of  forty-one 
and  ninety-three  hundredths  acres  owned  by  Elijah  in  1824, 
and  also  of  the  tract  of  thirty-one  and  sixty-five  hundredths 
acres  owned  by  Daniel  at  that  time.  He  acquired  title  to  these 
two  tracts  in  different  pai'cels  at  several  times,  by  divers  mesne 
conveyances.  The  dam  and  about  two  hundred  feet  of  the  race- 
way are  on  the  tract  of  thirty-one  and  sixty-five  hundredths 
acres  which  was  owned  by  Daniel  in  1824.  The  rest  of  the  race- 
way, until  it  reaches  the  complainant's  lands,  lies  upon  that  part 
of  the  tract  of  forty-one  and  ninety-three  hundredths  acres 
which  defendant  owns  by  a  title  derived  from  Ehjah. 

In  view  of  the  claim  of  right  in  the  bill,  and  the  prayer  for 
relief,  I  do  not  deem  it  necessary  to  refer  to  the  provisions  on 
this  subject  contained  in  the  intermediate  title  deeds  of  the  par- 
ties. The  case  made  in  the  bill,  the  prayer  for  relief  and  the 
decree  of  the  chancellor  are  based  upon  the  condition  of  things 
in  1824.  If  the  complainant  acquired  greater  rights  in  parts  of 
the  defendant's  laud  by  the  intermediate  deeds  of  conveyance, 
such  rights  are  not  within  the  right  claimed  in  his  bill  or  within 
the  prayer  for  relief. 

It  should,  however,  be  remarked  that,  in  the  claim  of  title  of 
the  parties  from  Elijah  and  Daniel  Shotwell,  the  water  rights 
and  privileges,  as  they  existed  in  1824,  are  preserved  by  recitals 
and  reservations  contained  in  the  intermediate  deeds  of  convey- 
ance. Indeed,  it  is  not  disputed  that  the  complainant  acquired, 
by  his  deed  from  the  Hotchkisses  in  1869,  the  right  to  the  use 
of  the  waters  of  the  stream  as  they  had  been  used  theretofore ; 
nor  is  the  right  of  the  complainant  to  have  the  dam  and  its 
pondage  maintained  at  their  present  height  denied.  The  con- 
tention of  the  defendant  is,  first,  that  Hyde  is  not  entitled  to  any 
relief  on  his  cross-bill,  and  that,  if  he  has  succeeded  in  the  suit, 
he  is  only  entitled  to  a  dissolution  of  the  injunction  granted  on 
the  original  bill ;  second,  that  he  has  abandoned  or  lost  his  ease- 


640         COUET  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Johnston  v.  Hyde. 

ment  by  noa-user  or  by  the  appropriation  of  the  water  to  an- 
other and  a  dififereut  use  from  that  to  which  it  was  limited; 
third,  tliat  lie  is  concluded  from  the  relief  sought  by  the  cross- 
bill by  an  equitable  estoppel  arising  from  his  acquiescence  in  ex- 
penditures and  improvements  made  by  Johnston  ;  fourth,  that 
if  he  is  entitled  to  any  relief  other  than  a  dissolution  of  the  in- 
junction granted  upon  the  original  bill,  he  is  only  entitled,  under 
the  pleadings  and  proofs,  to  have  the  water  conveyed  from  the 
dam  across  the  lands  of  Johnston  by  a  viaduct  of  sufficient 
capacity  to  permit  the  flow  of  so  much  water  as  he  is  entitled  to 
have  from  the  stream,  and  that  he  has  no  grounds  for  complaint 
if  such  a  viaduct  has,  in  fact,  been  constructed,  to  be  maintained 
by  said  Johnston  at  his  own  expense.  The  defendant  insists 
that,  as  the  owner  of  the  servient  tenement  he  may  pi'o- 
vide  for  the  transmission  of  the  water  through  his  lands  in 
such  a  manner  and  by  means  of  such  contrivances  as  may  be  ad- 
rantageous  to  his  interest,  provided  he  does  not  impede  the  flow 
or  diminish  the-quantity  of  the  water,  if  he  assumes  the  burden 
of  constructing  and  keeping  in  repair  the  aqueduct  by  which 
that  result  shall  be  effected.  In  the  brief  of  counsel,  a  commis- 
sion is  asked  for  to  ascertain  the  necessary  facts  for  a  decree  of 
the  import  just  mentioned. 

The  right  of  the  complainant  to  the  flow  of  the  water,  inde- 
pendent of  the  equitable  defences  interposed  by  the  defendant, 
being  undisputed,  the  jurisdiction  of  a  court  of  equity  in  the 
premises  is  too  well  settled  to  be  a  matter  of  contention.  Under 
such  circumstances,  a  court  of  equity  may,  by  preliminary  in- 
junction, interpose  to  prevent  the  threatened  injury,  and  on  final 
hearing  may,  by  a  mandatory  injunction,  compel  the  restoration 
of  the  premises  to  the  condition  in  which  they  were  before  the 
complainant's  rights  were  interfered  with.  In  such  a  case,  a 
mandatory  injunction  is  nothing  more  than  a  means  of  executing 
the  judgment  or  decree  of  the  court,  and  is  necessary  to  carry  its 
decree  into  execution.  Rogers  Locomotive  Works  v.  Erie  Rail- 
way Co.,  5  a  E.  Gr.  379;  Carlisle  v.  Cooper,  6  Id.  576; 
Belknap  v.  Trimble,  3  Paige  577 ;   Corning  v.   Troy  Iron  Co., 


6  Stew.]  MARCH  TERM,  1881.  641 

Johnston  v.  Hyde. 

40  N.  Y.  191 ;  Kerr  on  Injunctions  331 ;  Coulson  &  Forbes  on 
Waters  666. 

Before  1824  the  mill  on  the  complainant's  premises  was  used 
as  a  saw-mill.  In  the  deeds  of  1824  the  mill  is  called  a  saw- 
mill ;  and  in  the  deed  from  Daniel  to  Elijah  the  water  privileges 
are  described  as  being  "for  the  purpose  of  a  saw-mill." 

In  LuttreWs  case,  4-  Coke  ( Vol.  3 part  4)  86,  the  plaintiff  declared 
that,  4  Martii,  Ifi  Eliz  ,  he  was  seized  in  fee  of  two  old  and  ruinous 
fulling-mills,  and  that  from  time  immemorial  magna  pars  aquce 
cujusdam  rivuli  ran  from  a  place  called  Head  Wear  to  said  mills, 
and  that  afterwards  he  pulled  down  the  said  mills  and  erected 
two  mills  to  grind  corn,  and  that  the  defendant  broke  the  bank 
and  diverted  the  water  from  his  mills.  The  defendant  claimed 
that  the  plaintiff,  in  tearing  down  the  old  fulling-mills,  and 
building  the  new  mills,  had  destroyed  his  prescription,  and  could 
not  prescribe  for  a  water-course  to  the  grist-mills.  But  it  was 
resolved  that  mill  was  the  substance  and  thing  demanded,  and 
the  addition  of  grist  or  fulling  was  but  to  show  the  quality  of 
the  mill,  and  that  the  plaintiff  might  alter  the  mill  into  whatever 
nature  of  a  mill  he  pleased,  provided  no  prejudice  should  arise 
thereby,  either  by  diverting  or  stopping  the  water  as  it  was  before. 
Ever  since  Luttrell's  case  it  has  been  considered  settled  law  that, 
when  the  easement  is  of  a  certain  quantity  of  water,  the  owner 
is  not  bound  to  use  it  in  a  particular  manner,  though  the  pur- 
pose for  which  it  is  used  be  mentioned  in  the  grant.  He  may 
use  the  water  in  a  different  manner  or  at  a  different  place,  or  in- 
crease the  capacity  of  the  machinery  which  is  propelled  by  it, 
without  affecting  his  right,  provided  the  quantity  used  is  not  in- 
creased and  the  change  does  not  prejudice  the  rights  of  others. 
Saunders  v.  Neioman,  1  B.  &  Aid.  358 ;  Hall  v.  Oldroyd,  I4. 
M.  &  W.  789 ;  Watts  v.  Kelson,  L.  R.  {6  Ch.)  166 ;  Casler  v. 
Shipman,  35  N.  Y.  533;   Carlisle  v.  Cooper,  6  C.  E.  Gr.  595. 

It  is  manifest  that  the  grant  contained  in  the  deeds  of  1824  is 
a  grant  of  a  certain  quantity  of  water.  The  call  for  the  dam  at 
its  then  present  height,  and  for  the  raceway  as  it  then  was, 
makes   it  apparent  that  such  was  the  purpose  of  the   parties. 

41 


642         COUKT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Johnston  v.  Hyde. 

When  the  grant  is  of  a  water-power,  and  it  be  left  in  doubt 
whether  the  kind  of  mill  mentioned  indicates  the  quantity  of 
water,  and  measures  the  extent  of  the  power  intended  to  be  con- 
veyed, or  the  grant  is  of  water  to  drive  a  particular  kind  of 
mill,  the  former  construction  will  be  favored,  because  it  is  most 
favorable  to  tiie  grantee  without  being  more  onerous  to  the 
grantor.  Ashley  v.  Pond,  18  Pick.  S68.  Grants  referring  to 
the  purpose  for  which  the  water  is  to  be  used  in  much  more  spe- 
cific and  precise  terms  than  those  now  under  consideration  have 
been  held  to  be  grants  of  a  certain  quantity  of  water  for  un- 
limited use  as  a  water-power,  and  not  grants  of  water  to  be 
used  for  the  specified  purpose  only.  Cromwell  v.  Seldon,  3  Comst. 
S63 ;  Borst  v.  Empie,  1  Seld.  33 ;  Olmstead  v.  Loomis,  5  Id, 
4^3 ;  Prall  v.  Lanison,  2  Alien  275 ;  Augell  on  Water- Courses^ 
§§/^P  a  to  14^  h.  The  mill  has  at  times  since  1824  been  used 
for  manufacturing  purposes  of  difierent  kinds,  and  at  one  time 
the  power  needed  was  obtained  by  using  a  steam  engine  in  ad- 
dition to  the  water-power.  But  for  none  of  these  uses  was  more 
water  used  or  obtained  than  was  supplied  by  the  dam  and  water- 
power  as  it  was  in  1824. 

Nor  has  the  complainant  lost  his  right  to  the  water  by  a  cesser 
of  use.  Mere  non-user  of  a  prescriptive  right  will  not  destroy 
the  right  unless  there  be  evidence  of  an  intention  to  abandon  it. 
Q-ossley  v.  Lightowler,  L.  R.  (2  Ch.)  478.  If  the  right  has  been 
derived  by  grant,  it  may  be  extinguished  by  possession  of  the 
servient  tenement  adverse  to  the  easement  for  the  full  period  of 
twenty  years,  but  will  not  be  lost  by  mere  non-user.  Carlisle  v. 
Cooper,  4.  C.  E.  Gr.  256;  Stilwell  v.  Horner,  6  Vr.  307 ; 
Townahend  v.  McDonald,  2  Kern  381 ;  Smyles  v.  Hasling,  22 
N.  Y.  217;  Arnold  v.  Stevens,  24  Pick.  106;  Ower  v.  Field, 
102  Mass.  91-114;  Goddard  on  Ease.  {Beanet£s  ed.)  4j64.  The 
mill  has  been  in  general  use  since  1824.  At  times  the  race- 
way has  been  dilapidated,  and  for  about  one  year  the  mill  lay 
idle,  by  reason  of  a  disagreement  between  the  complainant  and 
his  tenants. 

There  are  cases  in  which  the  owner  of  an  easement  has  been 
considered  as  having  lost  his  easement  by  acquiescence,  as  where 


6  Stew.]  MARCH  TERM,  1881.  643 


Juliustou  V.  H\  lie. 


he  has  discontinued  the  use  of  the  easement  under  circumstances 
indicating  his  intention  to  renounce  it,  and  the  owner  of  the  ser- 
vient tenement,  relying  on  liis  conduct,  has  been  induced  to  make 
expenditures,  in  ahering  and  improving  his  premises,  wliich  ex- 
penditures would  be  made  useless  if  the  owner  of  the  easement 
should  resume  the  use  of  it.  Under  such  circumstances,  in  some 
cases,  the  easement  has  in  equity  been  considered  as  extinguished, 
though  the  discontinuance  of  the  use  of  it  has  been  for  a  period 
less  than  twenty  years.  Davles  v.  Marshall,  10  C.  B.  [N.  S.)  697; 
Stokoe  V.  Singers,  8  E.  &  B.  31 ;  Liggins  v.  Inge,  7  Blng.  6S£  ; 
3Iorse  v.  Copeland,  2  Ghxiy  302  ;  Raritan  Water  Power  Co.  v. 
Veghte,  6  C.  E.  Gr.Jf.63;  Case  of  the  Water- Courses,  2  Eq.  Cos. 
Ahr.  o22;  Williams  v.  Earl  of  Jersey,  1  Cr.  &  Ph.  91;  Duke 
of  Devonshire  v.  Eglin,  IJf,  Beav.  530  ;  Haight  v.  Proprietors,  4- 
Wash,  a  C.  601 ;  31.  &  E.  E.  B.  Co.  v.  Pruden,  6  C.  E.  Gr. 
631 ;  2  Am.  Lead.  Cas.  579  ;  Coulson  &  Forbes  on  Waters  20S. 
Cases  of  tiiis  class  depend  upon  the  doctrine  of  an  equitable 
estoppel. 

There  are  no  facts  in  this  case  upon  which  it  can  be  held  that 
the  complainant's  easement  has  been  extinguished  by  an  adverse 
possgpsion,  or  that  the  complainant  is  concluded  from  the  right 
to  the  use  of  the  easement  by  an  equitable  estoppel.  If  the  doc- 
trine of  equitable  estoppel  has  any  application  in  this  case,  it  will 
be  when  we  come  to  consider  whether  or  not  the  complainant  has 
disentitled  himself  to  any  other  right  than  to  have  the  water 
delivered  to  him  on  his  premises  in  the  manner  in  which  the 
defendant  has  made  provision  for  its  delivery. 

Having  reached  the  conclusion  above  indicated,  with  respect 
to  the  equitable  defences  interposed  by  the  defendant,  I  turn 
now  to  the  consideration  of  the  nature  and  extent  of  the  com- 
plainant's rights,  and  the  relief  he  is  entitled  to  on  his  cross-bill. 

The  complainant  founds  his  right  to  an  easement  in  the  defend- 
ant's lands  upon  an  express  grant.  The  question  is,  therefore, 
one  of  construction  only. 

Speaking  generally  with  reference  to  the  subject  matter  of  the 
grant,  it  is  a  grant  of  a  water-course.  A  grant  of  a  water-course 
may  mean  either  the  easement  of  the  right  to  the  flow  of  water, 


644         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Johnston  v.  Hyde. 

or  it  may  mean  the  channel  pipe  or  drain  which  contains  the 
water,  oc  tlie  land  over  which  it  flows ;  and  if  the  context  does 
not  show  an  intention  to  make  a  different  grant,  it  will  mean  an 
easement  of  the  right  to  tiie  flow  of  the  water.  Taylor  v.  Corp. 
of  St.  Helen's,  6  Ch.  Div.  S71-7.  A  grant  of  "  a  water- 
course flowing  or  descending  from  a  head  Aveir  *  *  in  and 
through  a  meadow,  *  *  and  from  thence  conveyed  by  a 
trough  into  a  meadow,"  is  not  a  grant  of  the  soil  of  the  channel, 
but  subjects  the  channel  to  an  easement  of  the  flow  of  water 
through  the  channel.  Doe  v.  Williams,  11  Q.  B.  688-700.  The 
use  of  an  artificial  channel  over  the  lands  of  another,  through 
which  the  waters  of  a  natural  stream  have  flowed  for  the  pre- 
scriptive period,  will  give  an  easement  of  the  right  to  the  flow  of 
the  water  through  that  channel,  and  the  right  to  sue  for  the 
interruption  of  that  easement,  Beestone  v.  Waite,  5  E.  &  B.  985- 
995.  In  Wortham  v.  Hurley,  1  E.  &  B.  665,  the  grant,  which 
was  by  a  deed,  was  of  the  waters  of  a  natural  stream,  to  be 
allowed  to  flow  in  a  free,  uninterrupted  course,  through  a  desig- 
nated channel  which  had  been  artificially  constructed  over  the 
lands  of  the  grantor,  with  a  covenant  by  the  grantee  to  keep  the 
channel  in  repair  and  properly  scoured;  and  it  was  adjudged 
that,  inasmuch  as  the  channel  was  specified,  and  the  right  was 
given  to  enter  and  clean  the  channel,  the  grant  operated  as  a 
grant  of  the  easement  of  the  water-course  therein  described,  and 
that  a  change  of  the  channel  on  the  servient  tenement  would  be 
an  injury  to  the  right.  The  defendant  insisted  thnt  the  water, 
though  diverted  from  a  part  of  the  channel,  was  restored  to  it  at 
a  lower  spot,  so  that,  in  effect,  the  plaintiff  had  the  full  use  of 
the  water ;  but  it  was  the  opinion  of  the  court  that  the  deed 
operated  as  a  grant  of  the  easement  of  a  water-course  therein 
described,  and  that  the  grantee  acquired  a  right  in  respect  of  that 
channel  such  as  that  a  change  in  the  channel  was  an  injury  to 
the  right  for  which  he  might  sue,  though  he  had,  in  fact,  sus- 
tained no  actual  damage. 

In  Johnson  v.  Jacqui,  10  C.  E.  Gr. ;  11  Id.  321;  12  Id. 
652,  the  owner  of  the  dominant  tenement  had  obtained  a 
grant  by  deed  from  the  owner  of  the  servient  tenement,  of  the 


6  Stew.]  MARCH  TERM,  1881.  645 

Johnston  v.  Hyde. 

right  to  take  the  water  from  a  pond  of  the  latter,  across  his  lands, 
"  as  now  carried  in  the  trunk  or  feeder  that  carries  the  water 
from  said  pond  to  the  grist-mill  pond  "  &c.  By  the  wideniug 
of  a  highway  the  trunk  came  within  the  lines  of  the  public  road, 
and  the  owner  of  the  easement  proposed  to  renew  the  trunk,  and, 
in  part,  change  its  location  on  the  land  of  the  grantor.  He  was 
enjoined  from  making  any  alteration  in  the  location  of  the  trunk, 
although  the  deed  expressly  granted  him  the  right  to  enter  upon 
the  lands  of  the  grantor  "along  and  adjoining  said  trunk  or 
feeder,  to  alter,  repair  or  renew  the  same  at  his  convenience." 
This  court  held  that  the  deed  created  an  easement  of  an  artificial 
water-way  on  a  defined  line  over  the  servient  tenement,  which 
could  not  be  changed  to  other  lands  of  the  owner  of  the  servient 
tenement  without  his  consent.  The  case  cited  is  an  authority  for 
the  one  in  hand,  for  it  was  decided  in  a  construction  of  a  deed 
of  grant,  which  is  applicable  to  both  the  owner  of  the  easement 
and  the  owner  of  the  servient  tenement,  and  it  was  so  considered 
by  Mr.  Justice  Knapp  in  his  opinion  in  this  court.  IS  C.  E.  Gr. 
655. 

The  raceway  was  in  existence  and  in  use  when  the  deeds  of 
1824  were  made.  So  far  back  as  tlie  testimony  has  gone  (upwards 
of  thirty  years),  the  raceway  is  described  as  an  open  raceway. 
The  evidence  raises  no  doubt  that  it  was  such  in  1824.  The  deeds 
of  that  date  are  to  be  construed  in  reference  to  the  state  and  con- 
dition of  the  premises  at  that  time.  Hall  v.  Lund,  1  H.  &  C. 
676.  They  establish  the  height  of  the  dam  as  it  then  was,  and 
provide  for  the  maintenance  of  the  raceway  as  it  then  stood, 
with  the  privilege  of  a  walk  on  the  race-bank  from  the  saw-mill 
to  the  dam — "  the  said  race,  dam  and  pond  to  remain  where  they 
now  stand,  and  not  to  be  altered."  On  the  construction  of  these 
deeds  it  is  clear  that  the  grant  was  of  an  easement  of  the  right 
to  the  flow  of  so  much  of  the  water  of  the  stream  as  the  dam 
then  standing  would  divert,  and  of  the  use  of  the  raceway,  as 
it  then  Avas,  as  the  conduit  by  which  the  water  should  be  carried 
to  the  mill.  Incident  to  the  rights  granted  is  the  right  to  enter 
on  the  lands  of  the  grantor  to  cleanse  and  repair  the  raceway 
and  dam,  and  to  do  whatever  might  be  necessary  and  proper  to 


646         COURT  OF  ERRORS  AND  APPEALS.  [83  Eq. 

Johnston  v.  Hyde. 

keep  thera  in  a  condition  fit  for  the  purpo.ses  for  wliich  they  were 
designed.  Pomfret  v.  Recroft,  1  \Vms  Saund.  323 ;  Prescott  v. 
Waite,  2i  Pick.  34-1;  Goddard  on  Ease.  285.  The  easement  is 
a  unit,  consisting  of  the  right  to  the  flow  of  water  and  of  the 
use  of  the  raceway,  and  the  right  to  enter  to  scour  and  repair. 
Peter  v.  Daniel,  5  C.  B.  567 ;   Coulson  &  Forbes  on  Waters  229. 

For  this  easement  the  defendant  proposes  to  substitute  another 
and  a  different  easement,  consisting  of  the  right  to  the  same  flow 
of  water  carried  over  his  lands  by  contrivances  devised  and  con- 
structed by  himself,  and  to  be  maintained  at  his  own  expense — 
substituting  an  enclosed  and  covered  culvert,  of  less  capacity,  for 
an  open  raceway ;  and  his  obligation  to  amend  and  keep  in  repair 
in  the  place  of  the  right  of  the  owner  of  the  easement  to  enter 
and  make  repairs  whensoever  they  may  be  necessary.  The  change 
is  one  that  materially  affects  the  rights  of  the  owner  of  the  ease- 
ment, and  cannot  be  made  without  the  consent  of  the  latter. 

On  this  head  the  defendant  contends  that  the  complainant  has 
waived  his  legal  rights  by  acquiescence  in  the  alterations  and  im- 
provements made  by  the  defendant.  The  proof  is  that  the 
defendant  began  his  improvements  in  1872,  in  which  he  has 
expended  ^6,000,  of  which  $1,000  was  expended  in  the  construc- 
tion of  the  wooden  aqueduct.  But  there  is  no  evidence  that  the 
defendant  was  induced  to  incur  this  expenditure  on  the  faith  of 
the  abandonment,  by  the  complainant,  of  his  water  rights  and 
privileges  as  they  had  been  enjoyed  since  1824.  On  the  con- 
trary, it  is  quite  clear  from  the  evidence  that  the  defendant  knew 
that  the  complainant  insisted  on  his  rights  as  he  had  previously 
enjoyed  them,  and  that  he  gave  no  consent  to  the  proposed  alter- 
ations. Under  such  circumstances  there  is  no  ground  on  which 
an  equitable  estoppel  can  be  rested,  or  on  which  he  can  be  com- 
pelled to  accept  an  enclosed  culvert  of  the  proposed  dimensions 
in  the  place  of  an  open  raceway. 

Nor  is  the  complainant  concluded  from  insisting  on  his  right 
to  such  a  raceway  as  he  is  entitled  to  through  the  defendant's 
lands,  by  the  action  of  the  public  authorities  in  laying  and  open- 
ing Farragut  avenue  over  the  raceway.  In  addition  to  the 
rcnsons  assigned  by  the  chancellor  for  considering  the  condition 


6  STE^^^]  INI  ARCH  TERM,  1881.  647 

Johnston  v.  Hyde. 

of  the  raceway  under  the  avenue  as  no  impediment  iu  the  way 
of  the  relief  sought,  it  may  be  added  that  the  defendant  cannot 
justify  under  the  action  of  the  public  authorities.  If  the  public 
has  infringed  on  the  complainant's  rights,  he  may  have  his  re- 
dlress  against  the  public  authorities,  if  no  compensation  has  been 
made  to  him  for  the  injury  suffered. 

The  chancellor  held  that  the  complainant  was  entitled  to  an 
easement  of  an  open  raceway  through  the  defendant's  lands, 
along  the  same  course,  and  of  the  same  width  and  depth,  as  it 
was  in  1824.  He  ascertained  its  average  width  to  be  fourteen 
feet  at  the  top  and  nine  feet  at  the  bottom,  and  its  average  depth 
to  be  four  feet.  He  decreed  the  box  aqueduct  constructed  by 
the  defendant  to  be  unlawful,  and  ordered  that  it  should  be 
removed,  and  that  the  raceway  should  be  restored  to  its  former 
condition  at  the  defendant's  expense,  and  that  the  complainant 
should  be  protected  in  the  enjoyment  of  his  easement  by  a  per- 
petual injunction.     I  think  his  decree  should  be  affirmed. 

Some  criticism  was  made,  on  the  argument,  upon  the  language 
of  that  part  of  the  decree  which  adjudged  that  the  complainant 
is  entitled  to  "  an  easement  of  an  open  raceway."  It  was  said 
that  the  decree  gives  to  the  complainant  absolute  and  entire  do- 
minion over  the  strip  of  land  on  which  the  raceway  is  located, 
and  that  the  defendant  is  excluded  from  all  riglit  in  that  part  of 
his  lands.  I  do  not  so  understand  the  import  and  legal  effect  of 
the  decree. 

The  decree  adjudges  that  the  complainant  is  entitled  to  an 
easement,  which,  in  legal  signification,  imports  an  interest  in  the 
lands — the  ownership  of  which  is  in  another — an  incorporeal 
hereditament,  consisting  of  the  right  to  use  the  lands  of  another 
for  the  purposes  for  which  the  easement  was  created,  with  the 
privilege  of  doing  on  the  servient  tenement  such  acts  as  are  essen- 
tial to  the  enjoyment  of  the  easement  itself.  The  owner  of  the 
land  over  which  the  easement  extends,  so  far  as  the  easement  is 
capable  of  being  exercised,  is  deprived  of  an  incident  of  prop- 
erty, and  the  owner  of  the  easement  acquires  by  it,  just  to  the 
same  extent,  an  interest  in  the  land  itself.  Phear  on  Waters  58. 
Considered  with  regard  to  the  servient  tenement,  an  easement  is 


648         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Johnston  v.  Hyde. 

but  a  change  or  obligation  curtailing  the  ordinary  rights  of  prop- 
erty {Gale  on  Ease.  6),  which  remain  in  the  owner  of  the  lands 
subject  to  the  enjoyment  of  the  easement.    Wash,  on  Ease.  227. 

The  owner  of  the  dominant  tenement  has  no  property  or 
rights  in  the  servient  tenement  except  such  as  are  incident  to  the 
enjoyment  of  his  easement.  So  strictly  is  this  principle  ad- 
hered to,  that  when  the  owner  of  an  easement  of  a  water-course 
exerci'scs  the  right  to  cleanse  the  channel  through  the  servient 
tenement,  his  right  to  remove  the  materials  taken  out  will  de- 
pend upon  the  circumstance  whether  they  are  or  are  not  useful 
or  beneficial  to  the  owner  of  the  soil ;  and  if  he  does  remove 
them,  it  is  his  duty  to  do  so  in  a  reasonable  time  and  in  a  manner 
least  prejudicial  to  the  owner  of  the  land.  Freseott  v.  White,  21 
Pick.  34.1. 

On  the  other  hand,  the  owner  of  the  servient  tenement  can  do 
no  act  on  his  lands  which  iuterferea,  substantially,  with  the  ease- 
ment, or  with  those  rights  which  are  requisite  to  the  full  enjoy- 
ment of  its  benefits ;  but  the  utmost  extent  of  the  duty  which 
rests  on  the  owner  of  the  servient  tenement  is  not  to  alter  its 
condition  so  as  to  interfere  with  the  enjoyment  of  the  easement. 
Gale  on  Ease.  7,  339.  How  far  the  owner  of  the  servient  tene- 
ment is  interdicted  from  acts  of  ownership  on  his  lands,  will 
depend  on  the  nature  and  qualities  of  the  easement.  The  owner 
of  land  over  which  the  grantor  has  reserved  a  passage-way 
"  for  carrying  and  recarrying  wood  and  any  other  thing  through 
the  same,"  may  lawfully  cover  the  same  with  a  building,  if  he 
leave  a  space  so  wide,  high  and  light  that  the  way  is  substan- 
tially as  convenient  as  before,  for  the  purposes  for  which  it  was 
reserved.  Atkins  v.  Boardman,  2  Mete.  4^7.  But  when  tenants 
in  common  made  partition  of  their  lands,  except  a  certain  ])as- 
sage-way  or  court,  called  Central  Court,  and  covenanted  that  the 
part  not  set  off  in  the  partition  should  "  be  left,  and  always  lie 
open  for  the  passage-way  or  court  aforesaid,  for  the  common  use 
and  benefit  of  both  the  said  parties  and  their  respective  estates," 
it  was  held  that  the  parties  had  not  only  a  right  of  way,  but  also 
a  right  to  have  the  whole  court  open  for  light  and  air ;  and  a 


6  Stew.]  MARCH  TERM,  1881.  649 

Johnston  v.  Hyde. 

bridge  over  the  court,  connecting  the  buildings  on  each  side, 
which  seriously  incommoded  the  one  party,  was  enjoined.  Salis- 
bury V.  Andrews,  128  Mass.  336. 

In  one  sense  an  open  raceway  is  essential  to  the  enjoyment  of 
the  complainant's  rights ;  but  it  cannot  be  imagined  that  a  race- 
way open  ibsque  ad  ccelum,  and  throughout  the  entire  length  of 
the  raceway,  is  necessary  to  that  end.  The  easement  of  the  com- 
plainant is  of  the  right  to  the  flow  of  the  water  through  the 
channel,  with  the  right  to  keep  up  and  maintain  the  banks  of 
the  raceway,  and  to  scour  and  cleanse  the  same  when  necessary. 
The  box  aqueduct  which  the  defendant  placed  in  the  raceway 
was  a  plain  invasion  of  the  complainant's  rights,  and  the  chan- 
cellor decreed  that  it  should  be  removed.  The  chancellor,  also, 
by  an  injunction,  in  general  terms,  perpetually  enjoined  the 
defendant  from  obstructing  the  full  and  free  enjoyment  by  the 
complainant  of  his  easement,  and  of  his  right  to  cleanse  and 
repair;  but  he  did  not  determine,  in  advance,  what  acts  of  the 
defendant  in  the  future  would  be  a  violation,  of  the  complain- 
ant's rights.  The  defendant  may  throw  bridges  over  the  race- 
way to  connect  the  two  parcels  into  which  his  lands  are  severed 
by  the  raceway,  in  such  a  manner  as  not  to  impair  the  complain- 
ant's rights,  and  generally  may  exercise  over  the  premises  such 
acts  of  ownership  as  do  not  substantially  interfere  with  the  enjoy- 
ment by  the  complainant  of  his  rights  therein.  Sucii  acts  are 
the  incidents  of  his  title  as  the  owner  of  his  lands,  and  have  not 
been  surrendered  to  the  complainant.  Whether  the  acts  he  shall 
do  in  the  future,  when  he  shall  have  obeyed  the  mandatory  part 
of  the  decree,  are  substantially  an  interference  with  the  com- 
plainant's rights,  is  a  question  which  will  arise  when  the  inquiiy 
arises  whether  the  prohibitions  of  the  injunction  have  been  dis- 
regarded. 

The  decree  should  be  affirmed,  with  costs. 

Decree  unanimously  affirmed. 


650         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 


Brown  v.  Brown. 


Archibald  K.  Brown,  appellant, 


Joseph  M.  Brown  et  al.,  respondents. 

1.  The  specific  performance  of  contracts  is  a  mode  of  redress  grounded 
upon  the  impracticability  or  inadequacy  of  legal  remedies  to  compensate  for 
the  damages  which  the  party  seeking  it  will  suffer  by  the  default  of  the  other 
in  keeping  his  bargain. 

2.  It  is  only  when  the  remedy  at  law  will  not  put  the  party  in  a  situation 
as  beneficial  to  him  as  if  the  agreement  were  specifically  performed  that 
equity  will  interfere. 

3.  Where  jurisdiction  exists,  the  remedy  is  not  of  right;  the  court  holds  it 
in  judicial  discretion,  controlled  by  principles  of  equity  and  justice. 

4.  The  bargain  or  promise  to  be  enforced,  whether  written  or  verbal,  must 
possess,  in  substance  and  external  form,  the  requisites  of  a  valid  contract. 

5.  It  must  have  been  completely  determined  between  the  parties,  and  its 
terms  definitely  ascertained. 

6.  So  long  as  negotiations  are  pending  over  matters  regarded  by  the  parties 
as  material  to  the  contract,  and  until  they  are  settled,  and  the  minds  of  the 
contracting  parties  meet  upon  them,  it  is  not  a  contract,  although,  ns  to  some 
matters,  they  may  be  agreed. 

7.  Where  it  was  sought  to  compel  the  specific  performance  of  a  parol  agree- 
ment to  assign  in  trust,  for  the  benefit  of  the  complainant  and  five  other 
creditors,  the  defendant's  interest  under  a  will,  and  it  appeared  that  at  the 
interview  during  which  the  alleged  parol  agreement  was  entered  into,  tlie 
terms  and  conditions  of  the  assignment  were  in  a  measure,  but  not  entirely, 
ascertained  ;  it  being  understood  at  that  time  that  the  assignee  was  to  pay  the 
creditors  first,  and  then  recouvey  the  remainder  to  the  assignor,  but  as  to  pro- 
vision for  the  defendant's  own  support  out  of  that  interest,  and  liis  release 
and  discharge  from  those  creditors*  claims  no  agreement  was  reached  ;  and 
afterwards  the  defendant,  using  a  form  drafted  for  him  by  the  creditors,  con- 
taining such  j^rovisiou,  prepared,  signed  and  sealed  an  instrument  of  assign- 
ment, and  at  the  instance  of  one  of  the  creditors  omitted  therefrom  all  such 
provision,  but  refused  to  deliver  the  instrument,  on  the  ground  that  such  pro- 
vision was  first  to  be  made,  and  the  creditors  to  release  and  discharge  him 
from  their  demand — Held,  that  there  is  no  such  contract  established  between 
the  complainants  and  defendant  as  a  court  of  equity  can  and  will  perform 
by  its  decree. 

8.  In  such  case  there  was  no  delivery  of  the  deed  of  assignment,  and, 
therefore,  the  suit  cannot  be  maintained  as  a  proceeding  to  obtain  possession 
of  a  deed  or  muniment  of  title. 


6  Stew.]  MARCH  TERM,  1881.  651 

Brown  v.  Brown. 

9.  What  acts  or  words  sliall  constitute  a  delivery  must  depend  upon  the 
circumstances  of  each  case. 

10.  A  specific  performance  will  not  be  decreed  unless  the  existence  and 
terms  of  the  contract  be  clearly  proved.  If  it  be  reasonably  doubtful  whether 
the  contract  was  finally  closed,  equity  will  not  interfere. 

11.  The  proposal  made  by  the  defendant  was,  as  to  all  the  creditors  named, 
an  entirety,  and  was  not  capable  of  severance. 

12.  The  failure  of  a  part  of  the  creditors  to  agree  to  a  condition  embracing 
all  would  be  a  total,  not  a  partial,  failure  to  accept  such  conditions. 

13.  A  devise  of  rents  arising  out  of  the  residue  of  the  testator's  real  estate, 
which  the  executors  were  authorized  and  directed  to  sell,  is  an  interest  in 
lands  within  the  statute  of  frauds,  and  its  transfer  must  be  evidenced  by  a 
note  or  memorandum  signed  by  the  party  to  be  charged  therewith. 

14.  In  order  to  enforce  the  performance  of  a  contract  witliin  the  statute  of 
frauds,  on  the  ground  of  part  performance,  (1)  the  parol  agreement  relied  on 
must  be  certain  and  definite  in  its  terms  ;  (2)  the  acts  proved  in  part  per- 
formance must  refer  to,  result  from,  or  be  made  in  pursuance  of  the  agree- 
ment proved  ;  (3)  the  agreement  must  have  been  so  far  executed  tliat  a  refusal 
of  full  execution  would  operate  as  a  fraud  upon  the  party,  and  place  him  in  a 
situation  which  does  not  lie  in  compensation. 

15.  The  assignment  in  this  case  cannot  be  regarded  as  the  written  memo- 
randum required  by  the  statute  of  frauds,  because  it  was  not  delivered. 


On  appeal  from  chancery. 

Mr.  Gillmore  and  3Ir.  Collins,  for  appellant. 

3Ir.  Weart  and  Mr.  Ransom,  for  respondents. 

Knapp,  J. 

The  bill  of  the  complainants  below,  and  the  several  cross-bills, 
were  designed  in  effect  to  have  the  appellant  specifically  perform 
a  parol  agreement  to  assign  in  trust,  for  the  benefit  of  complain- 
ant and  certain  other  creditors  of  appelhiut,  his  interest  in  the 
estate  of  his  father-in-law,  Hosea  F.  Clark,  deceased,  given  by 
his  will. 

In  the  pleadings  filed,  and  from  the  proofs  taken  in  the  cause, 
it  appears  that  in  the  year  1  877  the  appellant,  Brown,  was  in- 
debted to  the  complainant,  and  to  William  M.  Force  and  others 
for  money  which  he,  acting  as  their  attorney,  had  collected  for 


652         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Brown  v.  Brown. 

them  and  fiiiled  to  pay  over.  He  was  without  means  or  re- 
sources to  satisfy  these  and  otlier  debts  owing  by  him,  except 
the  provision  made  for  him  in  the  will  of  his  wife's  father. 

Force  and  the  complainant  were  pressing  him  for  payment. 
Force  had  instituted,  in  the  Supreme  Court,  proceedings  for 
attachment  and  to  disbar  him,  and  had  commenced  suit  for  his 
claim.  The  complainant  threatened  similar  measures  against 
him,  and  each  was  urging  to  have  the  interest  in  the  will  as- 
signed to  himself.  Brown  had  promised  to  make  the  transfer  to 
Force,  but  did  not  do  so. 

About  the  month  of  July,  1877,  Brown  met  Force  and  his 
attorney  at  the  office  of  the  complainant's  solicitor  in  Jersey  City. 
At  that  interview  he  promised  to  assign  the  whole  or  some  part 
of  his  interest  under  the  will  in  trust  for  the  ratable  benefit  of 
the  complainants,  Force,  Henry  S.  Little,  Benjamin  F.  Lee, 
John  S.  Beegle,  George  F.  Brown  and  Joseph  M.  Brown,  all  of 
whom  were  his  creditors,  and  the  terms  and  conditions  of  the 
proposed  assignment  were  in  a  measure,  but  not  entirely,  ascer- 
tained. It  was  understood  that  what  should  be  assigned  must 
be  for  the  common  interest  of  all  the  creditors  named,  and  that 
when  they  Vv'ere  entirely  paid,  the  remainder  should  be  given 
back  to  the  assignor.  What  sum  or  share,  if  any.  Brown 
should  retain  for  his  own  support,  or  what  disposition  the 
creditors  were  to  make  of  their  claims,  or  what  changed  attitude 
towards  Brown  was  to  be  assumed  by  them  in  consideration  of 
the  assignment,  the  parties  seem  not  to  be  agreed  about. 

Mr.  Ransom  drafted  a  form  from  which  Brown  was  to  pre- 
pare an  instrument  of  transfer.  This  he.  Brown,  did,  omitting 
at  the  request  of  Force,  or  his  attorney,  all  provision  for  him- 
self, named  John  Olendorf,  Jr.,  as  trustee,  authorized  him  to 
collect  from  the  executor  of  Clark  all  moneys  due  or  to  grow 
due  to  him  from  the  estate,  and  directed  payment,  as  the  money 
should  be  received,  to  be  made  pro  rata  among  the  creditors 
named  until  they  were  paid  their  several  demands,  and  the  bal- 
ance to  reconvey  to  him.  The  deed  so  drawn  was  sigjied  and 
sealed  by  Brown  in  the  presence  of  a  subscribing  witness,  but 
the  custody  of  the  paper  remained  with  the  appellant.     He  re- 


6  Stew.]  MARCH  TERM,  1881.  653 

Brown  V.  Brown. 

fused  to  hand  it  over  to  the  assignee  or  to  the  creditors  who  ap- 
]ilied  for  it,  upon  the  alleged  ground  that  some  provision  was 
first  to  be  made  for  some  portion  of  interest  under  the  will  for 
his  own  support,  and  that  the  creditors  so  to  be  provided  for 
Mere  to  discharge  him  from  their  demands  and  engage  to  no 
further  prosecute  them  against  him.  Those  creditors  who  Avere 
active  in  pressing  their  demands  against  him  disagreed  to  his 
retaining  any  share  of  the  Clark  estate  for  his  maintenance,  and 
one  of  them,  Mr.  Force,  pressed  the  suit  already  commenced 
against  him  to  final  judgment,  execution  and  supplemental  j)ro- 
ceedings  to  get  possession  of  his  share  under  the  will,  and  in 
October,  1877,  filed  his  bill  in  equity  for  the  appointment  of  a 
receiver.  Upon  the  case  as  made,  the  leading  features  of  which 
are  thus  summarized,  the  advisory  master  found  that  there  was 
an  agreement  made  by  Brown  on  sufficient  consideration  to  as- 
sign the  interest  given  him  in  the  will  upon  the  precise  terms 
expressed  in  the  writing  signed  and  sealed  by  him.  And  that, 
although  the  deed  of  assignment  was  not  technically  delivered 
to  Olendorf,  yet  the  beneficiaries  under  it  had  a  right  to  have  it 
delivered  and  specifically  performed;  that  Force  was  entitled  to 
participate  in  the  subject  of  the  assignment,  and  he  advised  a 
decree  accordingly.  Such  decree  was  entered,  and  the  appeal  is 
taken  from  the  decree. 

Before  proceeding  to  those  questions  which  I  regard  as  con- 
trolling the  cause,  it  is  proper  to  notice  a  point  urged  by  counsel 
of  appellees  with  much  earnestness,  viz.,  that  the  deed  of  assign- 
ment was  delivered,  or  should  be  so  regarded  in  a  court  of 
equity.  Until  a  deed  is  delivered  it  has  no  force  or  validity. 
"What  acts  or  words  shall  constitute  a  delivery  must  depend 
upon  the  circumstances  of  each  case.  Words  or  acts  which 
evince  an  intent  to  deliver,  such  intent  having  reference  to  the 
present  time,  are  sufficient.     Folly  v.  Vaniuyl,  4-  Hal.  153. 

The  possession  by  the  grantee  of  a  deed  formally  executed  is 
presumptive  evidence  of  delivery.  The  admissions  of  the 
grantor  of  a  delivery  are,  like  other  admissions  against  himself, 
competent  evidence  upon  the  subject.  But  it  is  a  fact  to  be 
proved,  like  any  other,  by  competent  testimony ;  nud  whether  the 


654         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Brown  V.  Brown. 

issue  be  in  a  court  of  law  or  in  equity,  it  is  one  to  be  established 
by  proof,  and  we  are  not  aware  of  any  rule  of  evidence  under 
whicli  the  character  or  measure  of  proof  of  a  fact  differs  in  the 
different  jurisdictions.  Certainly,  neither  in  law  or  equity, 
has  the  court  power  to  take  up  a  contract  unfinished  between 
the  parties,  and  complete  it  for  them  by  its  judgment  or  decree. 
Courts  do  not  make  contracts  for  parties.  We  agree  entirely 
with  the  advisory  master  that  no  delivery  was  proved.  Wlieii 
the  instrument  was  sealed,  the  grantor  expressly  declared  his  in- 
tention to  retain  it  for  further  consideration.  If  there  was  a 
delivery,  the  title  to  the  fund  would  have  passed  to  the  assignee, 
and  it  would  then  be  difficult  to  find  standing-ground  for  the 
appellees ;  this  suit  would  be  a  purposeless  proceeding.  If  there 
was  no  delivery,  the  suit  cannot  be  maintained  as  a  proceeding 
to  obtain  possession  of  a  deed  or  muniment  of  title.  Title  in  the 
plaintiff  to  the  document  sought  to  be  recovered  is  essential  in 
such  a  suit. 

The  decree,  although  in  form  directing  the  delivery  of  the 
specific  paper  drawn  and  signed  by  appellant,  is,  in  substance,  as 
we  interpret  it,  one  for  the  specific  performance  of  the  parol 
•  agreement  to  assign  the  appellant's  share  under  the  will,  by 
executing  an  assignment  according  to  the  terms  of  the  agreement 
as  found  by  the  court. 

The  question,  then,  raised  by  the  appeal  is,  whether  the  com- 
plainants below  have  established  such  a  contract  between  the 
appellant  and  themselves  as  a  court  of  equity  can  and  will  per- 
form by  its  decree. 

There  are  certain  general  rules  governing  the  court  in  the 
specific  execution  of  contracts  between  parties  that  are  established. 
It  is  a  mode  of  redress,  grounded  upon  the  impracticability  or 
inadequacy  of  legal  remedies  to  compensate  for  the  damages 
which  the  party  seeking  it  will  suffer,  by  the  default  of  the  other 
in  keeping  his  bargain.  Wi)ere  the  law  gives  an  action  for  the 
non-performance  of  the  contract,  and  damages  can  be  admeasured 
to  fully  match  the  wrong  inflicted,  courts  of  equity  will  not, 
unless  other  grounds  of  equitable  relief  be  involved,  accord  this 
remedy.     It  is  only  when  the  remedy  at  law  will  not  put  the 


6  Stew.]  MARCH  TER:\r,  1881.  655 

Brown  v.  Brown. 

party  in  a  situation  as  beneficial  to  him  as  if  the  agreement  were 
specifically  performed.  Pom.  on  Sp.  Per/.  §  9,  and  notes ;  Cut- 
ting V.  Dana,  10  C.  E.  Gr.  271. 

Where  jurisdiction  exists,  the  remedy  is  not  of  right;  the 
court  holds  it  in  judicial  discretion,  controlled  by  principles  of 
equity  and  justice.  "  The  question  is  not  what  the  court  must 
do,  but  what  it  may  do  under  the  circumstances."  Raddiff  v. 
Warrington,  12  Ves.  332. 

The  bargain  or  promise  to  be  enforced,  M'hether  it  exist  in  the 
form  of  writing  or  be  merely  verbal,  must  possess,  in  substance 
and  external  form,  the  qualities  and  requisites  of  a  valid  con- 
tract. The  bargain  must  have  been  completely  determined  be- 
tween the  parties,  and  its  terms  definitely  ascertained.  So  long 
as  negotiations  are  pending  over  matters  relating  to  the  contract, 
and  which  the  parties  regard  as  material  to  it,  and  until  they  are 
settled  and  their  minds  meet  upon  them,  it  is  not  a  contract, 
although  as  to  some  matters  they  may  be  agreed. 

An  important  question  in  the  cause  is,  whether  these  parties 
ever  reached  the  point  where  it  could  be  said  they  were  agreed 
upon  all  the  essential  terms  of  the  contract  to  assign  the  gift  in 
the  will.  If  the  parties  and  witnesses  who  testified  in  the  case 
are  credible  men,  and  there  is  no  intimation  from  any  quarter 
that  they  are  not  all  of  them  entirely  so,  it  would  seem  impos- 
sible, out  of  the  conflict  of  views  entertained  and  statements 
made  by  them,  to  reach  any  other  conclusion  than  that  they  were, 
during  their  negotiations,  and  since  then  have  remained,  at  irre- 
concilable variance  in  respect  to  important  particulars  touching 
the  subject  of  their  treaty. 

Brown,  by  his  responsive  answer  to  the  bill,  and  in  his  testi- 
mony, persistently  and  forcibly  asserts  that  he  never  agreed  to 
assign  his  interest  except  upon  the  condition  that  some  certain 
portion  of  the  fund  to  be  conveyed  should  be  secured  to  him  for 
his  support,  and  that  he  refused  to  make  the  transfer,  awaiting 
the  concurrence  of  those  creditors  with  whom  he  was  in  direct 
negotiation  in  that  demand.  That  this  was  truly  his  position 
has  not  only  his  oath  but  his  full  support  in  concurrent  circum- 
stances.    The  draft  of  the  assignment  made  by  Mr.  Ransom  was 


656         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Brown  v.  Brown. 

SO  framed  as  to  make  some  provision  for  him.  That  he  was  in 
controversy  with  Mr.  Force  and  his  counsel  touching  this  sub- 
ject, they  objecting  to  such  allowance,  is  not  disputed.  His 
being  destitute  of  other  means  of  support,  and  without  employ- 
ment, give  ground  for  believing  that  he  did  not  consent  to  give 
up  his  entire  means  of  support,  or  agree  to  depend  upon  a  verbal 
promise  of  an  uncertain  charity,  and  it  is  equaHy  certain  that 
they  did  not  agree  with  his  purpose  to  retain  a  part.  The  par- 
ties were  then  unsettled  as  to  the  subject  matter  of  the  contract. 

They  seem  to  have  been  equally  unfortunate  in  determining 
what  surrender  or  sacrifice  the  creditors  should  make  in  view  of 
an  assignment  being  made  for  their  benefit. 

The  appellant  insists  that  for  it  he  was  to  have,  in  lieu  of 
what  he  gave,  release  from  the  debts  as  such,  or  an  equivalent 
protection  against  their  further  prosecution.  He  says  in  his 
answer  that  the  agreement  was  that  the  claims  of  the  comj)lain- 
ant  and  Force  and  the  other  creditors  named,  "should  be 
released  and  this  defendant  discharged  from  the  same." 

Attempt  iiad  been  made  by  Force  to  attach  him  for  contempt, 
and  to  disbar  him,  and  proceedings  of  like  character  were  threat- 
ened by  others.  It  was,  therefore,  an  important  consideration 
with  him  that  the  claims  of  all  these  creditors  should  be  changed 
into  the  proposed  new  security,  or  that  some  other  legal  assur- 
ance against  their  further  prosecution  should  be  given.  For 
this  he  was  surrendering  almost  the  whole  of  the  fund,  and  it 
was  his  only  property.  It  is  thought  that  there  can  be  small 
doubt  that  such  was  his  understanding  and  expectation  through- 
out the  entire  effort  of  the  parties  at  making  an  agreement. 

That  the  creditors  did  not  come  to  an  understanding  on  this 
point,  so  important  to  the  appellant,  admits  of  as  little  question. 

The  acts  of  some,  and  the  testimony  and  declarations  of  all  on 
the  creditors'  side,  make  this  abundantly  manifest.  They  had 
not  consented  to  release  their  debts,  but  clearly  intended  to 
assume  and  maintain  towards  their  debtor  an  attitude  more 
advantageous  to  themselves  than  they  could  have  had  if  the 
assignment  had  been  made  under  the  act  governing  assignments 
for  the  benefit  of  creditors.     The  most  that  they  were  willing  to 


6  Stew. J  MARCH  TERM,  1881.  657 

Brown  v.  Brown. 

agree  to  was  that  they  would  forbear  to  prosecute  their  claims 
(for  how  long  does  not  appear)  if  and  when  appellant  conveyed 
the  fund.  This  is  apparent  from  the  complainant's  bill,  the 
cross-bill  of  Force,  and  the  testimony  of  Ransom,  Weart  and 
Force. 

There  is  little  to  show  that  the  appellant  was  not  standing  out 
for  these  terms,  save  that  he  was  undemonstrative  in  urging 
them.  The  acting  creditors  assumed,  quite  naturally,  perhaps, 
to  dictate  the  terms  in  the  respects  mentioned  rather  than  treat- 
ing them  as  matters  to  be  settled  by  convention  of  the  parties, 
and  as  a  result  their  minds  failed  to  meet  on  essential  terms  of 
the  agreement. 

A  specific  performance  will  not  be  decreed  unless  the  exist- 
ence and  terms  of  the  contract  be  clearly  proved.  It  must  be 
shown  that  a  contract  has  been  concluded.  If  it  be  reasonably 
doubtful  whether  the  contract  was  finally  closed,  equity  will  not 
interfere  by  decreeing  a  specific  performance.  Ridgway  v. 
Wharton,  6  H.  L.  Cos.  £S8  ;  Brewer  v.  Wilson,  2  C.  E.  Gr, 
182 ;  Potts  V.  Whitehead,  5  C.  E.  Or.  85.  Nor  will  it  inter- 
fere when  the  evidence  leaves  the  agreement  as  to  any  of  its 
terms  in  uncertainty.  Clow  v.  Taylor,  12  C.  E.  Gr.  Ji.18 ; 
Cooper  v.  Carlisle,  2  C.  E.  Or.  680. 

To  give  the  relief  accorded  by  the  decree,  it  is  necessary  not 
only  to  deny  to  the  appellant  the  consideration  which  he  relied 
upon  and  claimed  for  his  promise,  but  also  that  which  the 
appellees  conceded  as  such  consideration. 

The  proposal  made  by  appellant  was,  as  to  all  the  creditors 
named,  an  entirety,  and  was  not  capable  of  seveirance.  It  was 
not  an  offer  made  severally  to  each,  but  the  clear  purpose  was  to 
embrace  all,  and  its  entire  object,  so  far  as  the  appellant  was  con- 
cerned, failed  of  accomplishment  if  any  omitted  or  refused  to 
accept  it.  An  acceptance  could  only  be  by  those  and  all  of  them 
to  whom  the  offer  was  made  upon  the  strict  terms  of  such  offer. 

There  was  no  release,  merger  or  abatement  made  of  any  part 
of  their  claims.  They  were  to  remain  the  same  after  as  before 
the  assignment,  except  as  they  might  be  reduced  by  payment  out 
of  the   fund  after  it  should  be  transferred.     All  that  remaias, 

42 


658         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Brown  v.  Brown. 

then,  in  the  form  of  consideration,  is  the  unsecured  promise  not 
to  sue,  by  a  portion  of  the  creditors.  But  this  was  not  the  con- 
sideration stipulated  for  in  the  appellant's  offer,  viewed  from  the 
standpoint  of  the  appellees.  The  promise  not  to  prosecute 
further,  which  can  be  regarded  as  the  condition  of  the  offer,  was 
the  promise  of  all.  It  does  not  appear  that  more  than  two  of 
the  creditors  accepted  or  agreed  for  any  delay,  and  one  of  the 
two  seems  to  have  conducted  his  suit  to  judgment,  soon  followed 
by  execution,  petition  instituting  supplemental  proceedings,  and, 
subsequently,  on  the  15th  of  October  following,  he  filed  his  bill 
in  chancery  for  the  appointment,  in  his  interest  solely,  of  a  re- 
ceiver of  this  fund. 

The  acceptance  and  consent  of  a  part  of  the  creditors  in  no 
degree  meets  the  stipulated  condition.  The  failure  of  a  part  of 
them  to  agree  to  a  condition  embracing  all,  would  be  a  total,  not 
a  partial,  failure  to  accept  such  condition. 

In  the  appellees'  view,  then,  the  case  is  this :  appellant  agrees 
to  assign  a  fund  in  trust  for  the  ratable  benefit  of  six  creditors 
for  the  consideration  that  such  creditors  shall  all  agree  not 
further  to  prosecute  their  respective  claims ;  that  two  of  them 
having  so  promised  to  delay,  the  contract  is  complete,  the  con- 
sideration rendered,  and  performance  must  be  decreed. 

The  appellant  was  entitled  to  the  consideration  which  he 
stipulated  for ;  that  failing,  the  bargain  was  off,  however  advan- 
tageous it  might  have  been  to  appellees,  had  it  been  executed. 

But  there  is  a  further  difficulty  in  the  way  of  this  decree, 
growing  out  of  the  operation  of  the  statute  of  frauds  upon  a 
parol  agreement  concerning  the  subject  matter  of  this  negoti- 
ation. The  interest  of  the  appellant,  which  was  treated  of  with 
a  view  to  its  transfer,  arises  under  the  following  clause  in  the 
will  of  Hosea  F.  Clark,  deceased.  "  Item.  The  rents  arising 
from  my  houses  and  lands  and  real  estate,  which  I  have  directed 
to  be  sold,  from  the  time  of  my  decease  to  the  time  of  such  sale 
and  conveyaHce,  after  paying  thereon  all  taxes,  assessments  and 
repairs  and  interest  on  mortgage  encumbrances,  if  any,  as  the 
same  may  be  chargeable  from  time  to  time,  I  instruct  and  direct 
my  executrix  and  executors,  the  survivors  and  survivor  of  them, 


6  Stew.]  MARCH  TERM,  1881.  659 

Brown  v.  Brown. 

to  pay  over  in  quarterly  installments  iu  the  following  propor- 
tions as  bequests,  which  I  give  to  the  following  persons,  viz.,  to 
my  son-in-law,  Archibald  K.  Brown,  an  equal  one-sixth  part 
thereof."  The  rents  thus  given  are  those  arising  out  of  the 
residue  of  his  houses,  lands  and  real  estate  remaining  after  cer- 
tain specific  devises  in  the  will,  which  residuary  real  estate  the 
executors  were  authorized  and  directed  in  their  discretion  to  sell. 

To  the  parol  contract  set  up  in  the  bill  the  appellant  has 
pleaded  the  statute  of  frauds,  and  presents  the  question  whether 
the  interest  which  he  receives  by  the  recital  clause  in  the  will  is 
within  the  meaning  of  the  provision  requiring  contracts  for  the 
sale  of  lands,  tenements  or  hereditaments,  or  any  interest  in  or 
concerning  the  same,  to  be  in  writing. 

A  rent  is  an  incorporeal  hereditament.  2  Bl.  Com.  It  is  a 
eertiiin  profit  issuing  yearly  out  of  lands  and  tenements.  Lord 
Redesdale,  in  O'Connor  v.  Spaight,  1  Sch.  <fc  Lef.  306,  held  that 
an  agreement  between  a  landlord  and  his  tenant  for  an  abate- 
ment of  the  rent  was  within  the  statute.  In  Robertson  Frauds, 
page  126,  it  is  said  that  without  the  words  "any  interest  in  or 
concerning  lands,"  the  word  "  tenements  "  would  have  included 
rents  under  the  interpretation  given  by  Lord  Coke  to  that  word 
in  the  statute  de  donis.  In  Brown's  treatise  on  the  same  subject, 
p.  230,  the  author  summarily  disposes  of  the  question  by  saying, 
"  of  course  the  statute  includes  rents,  commons  and  all  incorporeal 
hereditaments." 

If,  then,  rents  are  included  within  the  meaning  of  the  statute, 
is  the  clause  iu  question  a  devise  of  rents?  By  its  terms  it 
would  seem  to  be  clearly  so.  What  he  gives  is  the  rents  arising 
from  his  houses  and  lands  and  real  estate.  The  executors  are 
authorized  to  collect  the  rents,  not,  however,  to  make  a  fund  in 
their  hands,  but  to  retain  and  pay  the  taxes  and  other  charges 
upon  the  lands  and  to  pass  over  the  remainder  or  net  rent  to  the 
appellant  and  other  parties  named  as  owners. 

If  the  foregoing  views  on  this  part  of  the  case  are  correct,  the 
alleged  agreement  being  for  the  sale  and  transfer  of  a  subject 
within  the  statute  of  frauds,  and  not  being  evidenced  by  any 
note  or  memorandum,  signed  by  the  party  charged  or  his  agent, 


660         COURT  OF  ERRORS  AND  APPEALS.  [33  Eq. 

Brown  v.  Brown. 

it  is  unavailing  either  at  law  or  in  equity,  and  is  incapable  of 
specific  performance,  unless  it  can  be  brought  within  that  class 
of  contracts  the  non-performance  of  wiiich  are  held,  by  reason 
of  peculiar  circumstances,  to  work  a  fraud  upon  him  who  seeks 
their  execution.  The  most  numerous  species  of  the  class  are 
those  not  enforceable  at  law,  by  reason  of  the  statute  of  frauds, 
but  which  have  been  part  performed  by  the  party  seeking  to 
enforce  them. 

The  doctrine  of  equity  that  part  performance  of  a  parol  agree- 
ment takes  it  out  of  the  statute  of  frauds,  rests  on  the  idea  that 
to  plead  the  statute  in  the  particular  instance  would  work  a  fraud. 

There  must  be  acts  in  part  performance  of  such  a  nature  that 
the  plaiutiflF  cannot  be  placed  in  his  original  position  or  adequately 
compensated  by  damages.  Pom.  on  Sp.  Perf.  §  106 ;  Gilbert  v. 
Trustees  &g.,  1  Beas.  WI^.. 

In  parol  agreements  for  the  sale  of  lands,  payment  of  the  con- 
tract price  by  the  purchaser  is  not  of  itself  sufficient  part  per- 
formance to  take  the  case  out  of  the  statute,  for  the  reason  that 
money  can  be  recovered  back,  with  interest,  by  way  of  damages 
for  its  detention.  Clinan  v.  Cook,  1  Sch.  &  Lef.  Ipl ;  Hughes  v. 
Morris,  1  De  G.,  M.  &  G.  355;  Glass  v.  Hurlburt,  102  Mass. 
S8;  Cole  v.  Potts,  2  Stock  67;  Green  v.  Richards,  8  C.  E.  Gr. 
S2;    Cutting  v.  Dana,  10  C.  E.  Gr.  271. 

A  brief  and  comprehensive  statement  of  the  conditions  under 
which  courts  of  equity  enforce  such  contracts  is  found  in  Wright 
v,  Puchett,  22  Gratt.  374-  "  1-  The  parol  agreement  relied  on 
must  be  certain  and  definite  in  its  terms.  2.  The  acts  ])roved 
in  part  performance  must  refer  to,  result  from,  or  be  made  in 
pursuance  of  the  agreement  proved.  3.  The  agreement  must 
have  been  so  far  executed  that  a  refusal  of  full  execution  would 
operate  as  a  fraud  upon  the  party,  and  place  him  in  a  situation 
which  does  not  lie  in  compensation.  When  these  three  things 
concur,  a  court  of  equity  may  decree  specific  execution.  When 
they  do  not,  it  will  turn  the  party  over  to  seek  compensation  in 
damages  in  a  court  of  law." 

There  were  no  written  memoranda  signed  by  the  appellants 
here.     The  assignment  cannot  be  regarded  as  such,  for  tlie  obvi- 


6  Stew.]  MARCH  TERM,  1881.  661 

Brown  v.  Brown. 

ous  reason  that  it  was  never  delivered  for  that  or  any  other 
purpose.     Brown  on  Frauds  §  SS^-,  and  cases  cited  in  note  3. 

The  admission  of  a  parol  agreement  in  the  answer  is  not  of  the 
agreement  claimed  by  the  complainant,  and  if  it  were,  his  setting 
up  the  statute  of  frauds  in  bar  precludes  a  decree  upon  the 
agreement  so  admitted.     Van  Dyne  v.  Vreeland,  3  Stock.  370. 

Regarding  the  pleadings  as  presenting  a  case  rested  on  the 
ground  of  part  performance,  it  is  obvious  that,  under  established 
rules,  proof  of  such  performance  is  absent. 

The  appellees,  or  most  of  them,  it  is  true,  forbore  to  prosecute 
their  claims.  Besides  this  they  did  nothing,  gave  nothing,  suf- 
fered nothing.  Their  claims  remained  as  before.  It  does  not 
appear  that  Brown  has  less  ability  now  to  pay  than  then.  He 
had  nothing  then  outside  of  the  legacy,  and  any  change  of  con- 
dition must  be  an  improvement.  For  their  delay  in  prosecu- 
tion they  had  adequate  damages  at  law  in  interest  for  their  for- 
bearance. 

For  the  foregoing  reasons  the  decree  should  be  reversed. 

Decree  unanimously  reversed. 


Abandonment. 

See  Waste. 


INDEX. 

A. 


Abatement. 

See  Bankruptcy  ;  Legacy,  9. 

Accident  and  Mistake. 

See  Jtibisdiction,  4 ;  Eefobmation  op  Instbuments. 

Account. 

See  Contract,  1 ;  Estoppel  ;  Executors,  13 ;  Guardian,  2 ;  Mobt- 
GAOE,  4,  10  ;  Partition,  1. 

Action. 

See  Eminent  Domain,  3. 

Ademption. 

See  Legacy,  3-8. 

Agent. 

1.  By  the  direction  of  a  committee  selected  to  represent  and  protect 
the  bondholders  of  a  railroad  corporation,  in  the  sale  of  the  prop- 
erty and  re-organization  of  the  company,  a  circular  was  issued  re- 
questing each  bondholder  willing  to  come  in,  to  deposit  his  bond 
with  a  designated  trust  institution  in  New  York,  together  with  the 
amount  of  a  specified  assessment  to  defray  the  expenses  of  the 
proceedings,  and  to  obtain  therefor  the  receipt  of  such  trust  in- 
stitution, countersigned  by  the  representative  of  the  committee 
to  be  thereafter  designated.  The  circular  further  stated  where 
the  oflSce  of  the  committee  was  in  New  York,  and  was  signed  by 
the  members  of  the  committee,  including  Howard  P.  Dechert, 
"secretary,"  and  required  such  deposit  to  be  made  on  or  before 
December  31st,  1879.  The  complainant  was  the  holder  of  a  bond 
for  $1,000,  which  she  took  to  the  trust  company  for  deposit,  to- 
gether with  the  amount  of  her  assessment,  on  January  13th,  1879. 
The  trust  company  refused  to  receive  it,  and  referred  her  to  the 
committee,  whereupon  she  took  it  to  the  designated  office  of  the 
committee,  where  Mr.  Dechert  received  it  and  her  assessment, 
giving  her  a  receipt  of  the  committee  therefor.  Three  days  afcer- 
663 


664  IXDEX.  [33  Eq. 

Agent — Continued. 

wards,  Mr.  Decliert,  as  secretary,  deposited  with  the  trust  com- 
pany this  bond  and  four  others,  taking  therefor  a  certificate  in 
his  individual  name.  The  sale  was  consummated,  the  company 
re-brganized,  and  are  about  to  issue  new  bonds  in  lieu  of  the  old 
ones,  but  refuse  to  acknowledge  the  validity  of  complainant's  re- 
ceipt or  her  claim  to  either  her  old  bond  or  a  new  one,  on  the 
ground  that  she  did  not  deposit  the  bond  with  the  trust  company. — 
Meld,  that  she  is  entitled  to  relief,  and  it  is  no  objection  that  the 
present  holder  of  complainant's  bond  is  not  made  a  party,  be- 
cause, for  aught  that  appears,  either  the  committee  or  its  agent, 
the  trust  company,  holds  it ;  or  if  the  secretary  of  the  committee 
has  misappropriated  it,  such  act  does  not  prejudice  complainant; 
nor  does  it  appear  that  any  one  having  an  interest  has  been 
omitted,  nor  that  complainant  failed  in  a  strict  compliance  with 
the  instructions  of  the  committee's  circular,  as  to  deposit  with  the 
trust  company,  because  the  committee  waived  such  requirements 
by  accepting  the  bond  and  assessment.  Hitchcock  v.  Midland 
Railroad  Co.,  86 

2.  A  mortgage,  given  in  1875,  payable  in  five  years,  was  assigned  by 
the  mortgagee  to  complainant  January  5th,  1876,  and  the  assign- 
ment recorded  February  16th,  1876.  The  bond  and  mortgage 
and  assignment  all  remained  in  the  hands  of  the  mortgagee,  as 
agent  of  the  assignee,  for  the  collection  of  the  interest,  until  No- 
vember 1st,  1877,  during  which  time  the  interest  and  part  of  the 
principal  were  paid  by  the  mortgagor  to  the  mortgagee,  who 
paid  over  the  interest  to  the  complainant,  but  none  of  the  prin- 
cipal. After  November  1st,  1877,  similar  payments  were  made 
to  the  mortgagee,  who  again  paid  over  the  interest,  but  not  the 
principal. — Held,  that  the  payments  of  the  principal  made  to  the 
mortgagee  after  the  assignment,  and  while  the  instruments  re- 
mained in  his  possession,  must  be  credited  on  the  mortgage; 
aliter,  as  to  such  payments,  after  they  had  been  withdra\yn  from 
him  by  the  complainant.     Emery  v.  Gordon,  447 

Alteration, 

See  Cancellation  ;  Guardla-n,  2. 

Appeal. 

1.  The  making  of  an  order  to  set  aside  a  sale  of  lands  is  a  proper 

matter  of  appeal,  either  by  the  parties  to  the  suit  or  by  the  pur- 
chaser.    Mut.  Life  Ins.  Co.  v.  Sturges,  328 

2.  After  the  court  had  refused  a  preliminary  injunction  for  the  re- 

moval of  an  oil  pipe  and  to  prevent  its  use  by  defendants,  and 
had  discharged  an  ad  interim  order  staying  the  defendants  in  the 
premises,  and  an  appeal  therefrom  had  been  taken  and  was  pend- 
ing, an  application  to  this  court  to  continue  such   ad  interim 


6  Stew.]  INDEX.  665 

Appeal — Continued. 

order,  merely  on  the  ground  of  the  appeal,  was  denied.      Central 

Railroad  Co.  v.  Standard  Oil  Co.f  372 

3.  The  burden  of  showing  error  is  on  the  appellant,  and  in  case  of 

doubtful   statutory   construction,   the    court   will    not    reverse. 

Smith  V.  Newark,  645 

See  Injunction,  3 ;  Parties,  5. 

Assignments  for  Creditors. 

1.  The  time  limited  for  creditors  to  file  their  claims  with  an  assignee, 

under  an  assignment  for  the  benefit  of  creditors,  expired  on  the 
8th  day  of  January.  On  that  day,  the  appellant,  a  creditor  re- 
siding in  Philadelphia,  discovered  that  fact,  although,  by  mis- 
reading his  own  entry,  he  had  previously  supposed  the  18th  of 
January  was  the  last  day.  He  thereupon  forwarded  his  claim 
to  the  assignee  at  Newark,  by  mail,  which  ought  to  have  been 
delivered  at  five  o'clock  in  the  afternoon,  but  was  not,  in  fact, 
delivered  until  the  next  day. — Held,  that  such  claim  was  neither 
"presented"  nor  "exhibited"  to  the  assignee,  within  the  terms 
of  the  statute,  within  the  time  limited.     Ellison  v.  Lindsley,  258 

2.  An  assignee,  under  an  assignment  for  the  benefit  of  the  creditors 

of  the  assignor,  pursuant  to  the  act  entitled  "An  act  to  secure  to 
creditors  an  equal  and  just  division  of  the  estates  of  debtors  who 
convey  to  assignees  for  the  benefit  of  creditors "  (Hev.  36),  may 
file  a  bill  to  set  aside  a  prior  conveyance  of  lands  made  by  the 
assignor  for  the  purpose  of  defrauding  his  creditors,  if  the  prop- 
erty so  conveyed  is  required  for  the  payment  of  the  claims  of 
creditors,  and  creditors  who  were  intended  to  be  hindered,  de- 
layed and  defrauded  by  such  conveyance  have  presented  their 
claims  to  the  assignee  for  allowance.     Pillsbury  v.  Kingon,  287 

3.  Assignees,  under  the  assignment  act,  and  executors  and  adminis- 

trators of  insolvent  estates,  are  the  representatives  of  creditors, 
and,  as  such,  may,  for  the  benefit  of  creditors,  set  aside  convey- 
ances by  the  assignor  or  the  decedent,  in  fraud  of  creditors,  to 
the  extent  that  such  property  is  needed  for  the  payment  of 
debts.    Id.,  287 

See  Executors,  10 ;  Marshaling  Assets,  1. 

Attachment. 

1.  Moneys  in  the  hands  of  a  sheriflf*,  raised  by  him  in  pursurance  of  a 
decree  of  the  court  of  chancery,  are  liable  to  seizure,  by  virtue  of 
a  writ  of  attachment.     Conover  v.  Ruckman,  303 

B,  . 

Bankruptcy. 

1.  A  defendant  in  a  chancery  suit  being  decreed  a  bankrupt  between 
a  decree  pro  confesso  and  a  final  decree,  does  not  abate  or  stay  the 
proceedings.    Davis  v.  Sullivan,  569 


666  INDEX.  [33  Eq. 


Betterments. 

1.  Where  a  party,  lawfully  in  the  possession  of  land,  under  a  title 
which  turns  out  to  be  defective,  makes  permanent  improvements, 
in  good  faith,  before  he  has  notice  that  his  title  is  defective, 
which  materially  increase  the  value  of  the  inheritance,  and  the 
actual  owner  afterwards  seeks  relief  agaiust  him  in  equity,  relief 
will  not  be  given  except  upon  equitable  terms.     Foley  v.  Kirk,     171 

See  Partition,  2. 

Bills  and  Notes. 

1.  On  a  note  made  by  the  complaiDant  for  the  accommodation  of  the 
endoi-ser,  with  the  payee's  (the  defendant's)  knowledge  that  it 
was  made  for  accommodation,  the  defendant  recovered  a  judg- 
ment at  law.  Afterwards  the  defendant,  without  the  complain- 
ant's knowledge  or  consent,  took  the  endorser's  notes,  some  of 
which  were  paid  and  others  renewed  and  not  paid,  on  which 
judgment  was  recovered. — Held,  that  the  giving  of  time  to  the 
endorser,  by  taking  his  notes,  discharged  the  maker  froct  liabil- 
ity on  the  original  judgment.  Westervdt  v.  Freeh,  461 
See  CoRPOBATiON,  12 ;  Usury,  4, 

c. 

Cancellation  of  Instruments. 

1.  A  party  who  files  a  bill  alleging  that  a  paper  made  by  him  has 

been  altered  since  its  execution,  and  asking  to  have  it  canceled, 
must  prove  the  fact  of  its  subsequent  alteration.     Putnam  v.  Clark,  338 

2.  Such  a  party  does  not  occupy  the  same  position  as  if  he  were  re- 

sisting a  claim  founded  upon  such  altered  instrument,  and  he 
cannot  successfully  ground  his  right  to  a  cancellation  of  it  upon 
a  technical  presumption  of  a  false  alteration  arising  from  a  sus- 
picious circumstance  merely.    Id.,  838 
See  Fraud,  1 ;  Jurisdiction,  1. 

Oases  Criticised. 

Bacon  v.  Bonham,  12  C.  E.  Gr.  209. 

Affirmed,  Bacon  v.  Bonham,  614 

Brown  v.  Brown. 

Reversed,  Brown  v.  Brown,  650 

Budd  V.  Van  Orden,  6  Stew.  Eq.  143. 

Affirmed,  Van  Orden  v.  Budd,  564 

Camden  H.  K.  Co.  v.  Citizens  Coach  Co.,  4  Stew.  Eq.  525. 

Affirmed,  Citizens  Coach  Co.  v.  Caniden  H.  B.  Co.,  267 

Campbell  v.  Tompkins,  5  Stew.  Eq.  170. 

Affirmed,  Tompkins  v.  Campbell,  362 

Conover  v.  Ruckman,  5  Stew.  Eq.  105. 

Heversed,  Conover  v.  Euckman,  303 


6  Stew.]  INDEX.  667 

Cases  Criticised — Continued. 
Clark  V.  Davis,  5  Stew.  Eq.  530. 

Affirmed,  Davis  v.  Clark,  579 

Cubberly  v.  Cubberly,  6  Stew.  Eq.  82. 

Affirmed,  Cubberly  v.  Cubberly,  591 

Eddy's  Case,  5  Stew.  Eq.  701. 

Modified,  Eddy's  Case,  574 

Eyster  v.  Gaff,  1  Otto  521. 

Criticised,  Davis  v.  Sullivan,  572 

Gaines  v.  Green  Pond  Mining  Co.,  5  Stew.  Eq.  86. 

Modified,  Gaines  v.  Green  Pond  Mining  Co.,  603 

Gardner  v.  Jersey  City,  5  Stew.  Eq.  586. 

Reversed,  Jersey  City  v.  Gardner  622 

Hill  V.  Beach,  1  Beas.  31. 

Explained,  Conover  v.  Ruckman,  304 

Johnson  v.  Somerville,  6  Stew.  Eq.  152. 

Affirmed,  Johnson  v.  Somerville,  621 

Johnston  v.  Hyde,  5  Stew.  Eq.  446. 

Affirmed,  Johnston  v.  Hyde,  632 

Lawrence  v.  Einson,  4  Stew.  Eq.  67.  : 

Affirmed,  Emson  v.  Lawrence,  286 

Miller  v.  Colt,  5  Stew.  Eq.  6. 

Affi)-med,  Colt  v.  Miller,  362 

Mut.  Life  Ins.  Co.  v.  Sturges,  5  Stew.  Eq.  678. 

Reversed,  Mut.  Life  Ins.  Co.  v.  Sturges,  328 

Pinnell  v.  Boyd,  5  Stew.  Eq.  190. 

Reversed,  Boyd  v.  Pinnell,  600 

Pillsbury  v.  Kingon,  4  Stew.  Eq.,  619. 

Reversed,  Pillsbury  v.  Kingon,  287 

Perrine  v.  Vreeland,  6  Stew.  Eq.  102. 

Affirmed,  Perrine  v.  Vreeland, 
Poulson  V.  Nat.  Bank  of  Frenchtown,  6  Stew.  Eq.  250. 

Affirmed,  Poulson  v.  Nat.  Bank  of  Frenchtown,  618 

Price  V.  Weehawken  Ferry  Co.,  4  Stew.  Eq.  31. 

Affirmed,  Jewett  v.  Price, 
Putnam  v.  Clark,  2  Stew.  Eq.  412. 

Affirmed,  Putnam  v.  Clark,  338 

Sayre  v.  Hewes,  5  Stew.  Eq.  652. 

Reversed,  Hoag  v.  Sayre,  552 

Bichardson  v.  Peacock,  1  Stew,  j^q- 151. 

Affirmed,  Peacock  v.  Bichardson,  697 

Euckman  v.  Ruckman,  5  Stew.  Eq.  259; 

Reversed,  Ruckman  v.  Ruckman,  354 

Shinn  v.  Zimmerman,  3  Zab.  150. 

Explained,  Conover  v.  Ruckman,  304 


668  INDEX.  [33  Eq. 

Cases  Criticised — Continued. 
Smith  V.  Newark,  5  Stew.  Eq.  1. 

Affirmed,  Smith  v.  Newark,  545 

Tillotson  V.  Gesner. 

'Reversed,  Tillotson  v.  Gesner,  313 

Van  Houten  v.  Post,  5  Stew.  Eq.  709. 

Reversed,  Van  Houten  v.  Post,  344 

Van  Keuren  v.  McLaughlin,  6  C.  E.  Gr.  163. 

Overruled,  Pillsbury  v.  Kingon,  303 

Welsh  V.  Crater,  5  Stew.  Eq.  177. 

Affirmed,  Crater  v.  Welsh,  362 

Wisham  v.  Lippincott,  1  Stock.  353. 

Dovbted,  Davis  v.  Howell,  76 

Williams  v.  Allen,  5  Stew.  Eq.  485. 

Affirmed,  AUen  v.  Williams,  684 

Chattel  Mortgage. 
See  Evidence,  5. 

Comity. 

See  Corporation,  1-3. 

Condition. 

See  Corporation,  16 ;  Devise,  1 ;  Legact,  2. 

Constitution. 

1.  That  section  of  the  general  railroad  law  which  authorizes  a  rail- 

road corporation  to  enter  on  lands  and  begin  constructing  their 
road,  after  paying  into  the  circuit  court  of  the  county  where  the 
lands  lie,  the  amount  awarded,  pending  their  appeal  from  such 
award,  is  unconstitutional  in  that  compensation,  or  a  tender 
thereof  to  the  land-owner,  does  not  precede  the  use  and  occupa- 
tion of  his  lands ;  and  for  want  of  such  tender  he  may  enjoin 
the  company  from  entering  upon  his  lands  and  constructing  their 
road  thereon.    Redman  v.  Phila.,  M.  &  M.  R.  R.  Co.,  166 

2.  The  act  of  1880  (P.  L.  of  1880  p.  255),  providing  that  in  fore- 

closure proceedings  thereafter  commenced,  no  personal  decree  for 
deficiency  shall  be  taken,  applies  to  mortgages  given  before  the 
date  of  its  passage,  and  is  not,  so  far  as  cases  in  which  there  is  a 
remedy  at  law  are  concerned,  unconstitutional  as  depriving  a 
party  of  any  remedy  for  enforcing  a  contract  wliich  existed  when 
the  contract  was  made,  because  a  more  efficacious  remedy  of  the 
same  sort  at  law  remains,  and  the  legislature  may,  without  in- 
fringing the  prohibition  of  the  constitution,  take  away  one  of 
two  or  more  equally  efficacious  remedies  of  the  same  sort.  New- 
ark Sav.  Inst.  V.  Foi-man,  436 
See  Municipal  Corporation,  3 ;  Taxes,  2. 


6  Stew.]  INDEX.  669 


Contempt. 

A  defendant  discharged  from  imprisonment  for  contempt  in  disobey- 
ing an  order,  although  he  had  not  cleared  his  contempt,  the 
chancellor  being  of  opinion  that  the  authority'  of  the  court  had 
been  vindicated  in  the  imprisonment  whicli  the  defendant  had 
undergone.    McClung  v.  MeClung,  462 

See  Injunction,  2. 

Contract. 

1.  A  testatrix,  after  giving  several  legacies,  gave  the  residue  of  her 

estate  to  her  executor,  to  be  by  him  distributed  to  such  charitable 
or  religious  societies  or  associations  or  corporations,  or  for  such 
other  benevolent  purposes,  as  he  might  see  fit.  Her  next  of  kin 
were  an  uncle  D.  and  two  aunts,  Mrs.  G.  and  Mrs.  K.  Another 
aunt  was  dead,  leaving  children — Samuel,  Alexander  and  the 
complainants — surviving.  The  probate  of  the  will  in  New  York, 
where  testatrix  lived,  was  opposed  by  D.  and  others.  Pending  the 
contest,  Samuel  falsely  represented  to  Mrs.  G.  and  Mrs.  R.  that  D. 
had  abandoned  his  opposition  to  the  will,  and  promised  that  if 
they  would  make  him  their  attorney  to  recover  their  interests  in 
the  estate,  and  would  divide  equally  with  him  whatever  he 
should  recover  for  them  as  next  of  kin,  he  would  attend  to  the 
litigation,  pay  all  the  costs  and  expenses  himself,  and  divide  the 
6um  he  received  from  them  equally  with  his  brothers  and  sister, 
the  complainants,  who,  he  stated,  were  poor  and  needy.  There- 
upon Mrs.  G.  and  Mrs.  K.  gave  him  a  power  of  attorney  to  act 
for  them  in  the  premises.  D.  continued  his  opposition  to  the 
will,  and  the  contest  was  eventually  compromised  by  admitting 
the  will  to  probate,  but  declaring  the  residuary  clause  void.  Mrs. 
R.  and  Mrs.  G.  gave  one-half  of  what  they  received,  as  next  of 
kin,  to  Samuel,  who  refused  to  divide  it  equally  with  complain- 
ants.— Held,  (1)  that  Samuel's  promise  to  Mrs.  R.  and  Mrs.  G.  to 
80  divide  with  complainants  was  enforceable  in  equity,  and  that 
they  were  entitled  to  an  account  of  his  expenses  about  the  litiga- 
tion and  to  their  several  shares  of  the  amount  received  by  him 
under  the  agreement ;  (2)  That  neither  Mrs.  R.  nor  Mrs.  G.  were 
necessary  defendants  or  complainants,  although  they  might  have 
been  proper  complainants.     Cubberly  v.  Cubberly,  82 

2.  Defendant  sold  to  complainant  the  fixtures  and  good  will  of  a  busi- 

ness which  largely  consisted  in  purchasing  poultry  in  designated 
districts,  and  shipping  it  to  New  York  for  sale;  and  also  coven- 
anted with  complainant  that  he  would  not,  at  any  time,  send  or 
ship  to  New  York  any  poultry  coming  from  those  districts.  Af- 
terwards, he  engaged  in  New  York  in  the  sale  of  poultry  on 
commission,  ordering  all  his  supplies  to  be  shipped  from  those 
districts,  sometimes  in  advance  of  his  sales,  sometimes  to  fill  con- 
tracts of  sale  previously  made. — Held,  that  in  so  doing  he  was 


670  INDEX.  [33  Eq. 

Contracts — Continued. 

violating  his  covenant,  and  should  be  restrained.  Richardson  v. 
Peacock,  697 

See  Constitution,  2 ;  Corporation,  6 ;  Executors,  1. 

Conveyances. 

What  acts  or  words  shall  constitute  a  delivery  of  a  deed  must  depend 
upon  the  circumstances  of  each  case.     Brown  v.  Brown,  650 

See  Frauds  and  Perjuries;  Specific  Performance. 

Corporation. 

1.  Independent  of  the  statute,  and  simply  as  a  matter  of  courtesy,  this 

court  may  extend  its  aid  to  the  receiver  of  a  foreign  corporation, 
for  the  purpose  of  enabling  him  to  get  possession  of  property, 
which  should,  in  equity,  be  applied  in  payment  of  the  debts  of 
the  corporation.    Nat.  Trust.  Co.  v.  3Iiller,  155 

2.  This  court  may  appoint  a  receiver  of  a  foreign  corporation  having 

property  in  this  state,  as  auxiliary  to  the  proceeding  instituted 
against  it  in  the  state  which  created  it,  and  confer  upon  him  the 
same  powers  that  it  is  authorized  to  grant  to  the  receiver  of  a 
domestic  corporation,  so  far  as  they  may  be  necessary  to  the 
recovery  and  collection  of  the  assets  of  the  corporation.    Id.,         155 

8.  And  the  court  is  bound  to  give  sucli  receiver  the  same  remedies 
and  aid,  in  the  collection  of  the  assets  of  the  corporation  he  rep- 
resents, that  it  would  give  to  the  receiver  of  a  domestic  corpora- 
tion.   Id.,  155 

4.  It  is  a  cardinal  rule  of  the  law  of  corporations,  that  a  corporation 
created  by  statute  can  exercise  no  power,  and  has  no  rights, 
except  such  as  are  expressly  given,  cr  necessarily  implied.    Id.,    155 

6.  Nor  can  the  powers  of  a  corporation  be  in  the  slightest  degree  en- 
larged or  extended  by  the  assent  of  the  stockholders,  or  by  any 
action  they  may  take.    Id.,  155 

6.  A  contract  not  within  the  scope  of  the  powers  conferred  on  a  cor- 

poration, cannot  be  made  valid  by  the  assent  of  every  one  of  the 
shareholders,  nor  can  it  by  any  partial  performance  become  the 
foundation  of  a  right  of  action.     Id.,  155 

7.  Equity  regards  the  property  of  a  corporation  as  a  fund  held  in 

trust  for  the  payment  of  its  debts,  and  if  others  than  bona  fide 
creditors  of  the  corporation  or  purchasers  possess  themselves  of 
it,  they  take  it  charged  with  this  trust,  which  a  court  of  equity 
will  enforce  against  them.    Id.,  155 

&  Where  preferred  stock  is  issued  under  a  contract  or  law  containing  no 
provision  or  direction  as  to  what  shall  be  the  rights  of  the  holders 
of  it  in  the  distribution  of  capital  when  the  afiairs  of  the  company 
are  wound  up,  such  stock  merely  has  a  right  to  be  preferred  in 
the  division  of  profits,  and  not  in  the  distribution  of  capital. 
McGregor  v.  Home  Ins.  Co.,  181 


6  Stew.]  INDEX.  671 

Corporation — Continued. 

9.  The  general  corporation  act  of  this  state  directs  that  in  the  distri- 

bution of  capital  the  holders  of  preferred  stock  shall  be  first  paid, 
before  any  distribution  is  made  to  the  holders  of  the  common 
stock ;  therefore  preferred  stock  issued  in  this  state,  either  under 
authority  of  law  or  under  a  contract  of  which  the  law  forms  a 
pait,  is  entitled  to  preference  in  the  distribution  of  capital.    Id.,    181 

10.  Dividends  on  preferred  stock  can  only  be  paid  out  of  the  profits  ; 

and  this  is  so  even  when  the  stock  is  issued  under  a  guaranty 
that  a  dividend  of  a  certain  sum  shall  be  paid  annually.     Id.,        181 

11.  The  rule  of  distribution  presented  by  the  corporation  act  must  be 

observed,  whether  the  affairs  of  a  corporation  are  wound  up  by 
the  court  or  the  officers  of  the  corporation.     Id.,  181 

12.  The  sixty-third  section  of  the  corporation  act  is  in  these  words : 

"  In  case  of  the  insolvency  of  any  corporation,  the  laborers  in  the 
employ  thereof  shall  have  a  lien  upon  the  assets  thereof  for  the 
amount  of  wages  due  to  them  respectively,  which  shall  be  paid 
prior  to  any  other  debt  or  debts  of  said  company ;  and  the  word 
'  laborers'  shall  be  construed  to  include  all  persons  doing  labor 
or  service  of  whatever  character,  for  or  as  workmen  or  em- 
ployees, in  the  regular  employ  of  such  corporation." — Held,  (1) 
that  the  lien  so  given  comes  into  existence  as  of  the  date  which 
the  court  adjudges  to  be  the  time  when  the  insolvency  occurred 
which  gives  it  jurisdiction ;  (2)  that  persons  holding  claims  for 
wages,  who  are  not  in  the  employ  of  a  corporation  at  the  time 
when  it  becomes  insolvent,  are  not  within  the  policy  of  the  act, 
and  tlierefore  have  no  lien  upon  the  assets  thereof;  (3)  that  the 
presentation  of  a  claim,  embracing  other  items  than  charges  for 
wages,  does  not  work  a  forfeiture  of  the  right  of  lien  for  the 
■wages,  given  by  the  statute ;  (4)  that  the  laborers  in  the  employ 
of  a  corporation  at  the  time  of  its  insolvency  have  a  lien  upon 
,  the  assets  thereof  for  the  whole  amount  of  wages  due  to  them  re- 
spectively, no  matter  how  long  before  the  date  of  insolvency  the 
wages  may  have  accrued ;  (5)  that  the  acceptance  of  a  promissory 
note,  without  security,  does  not  operate  as  a  waiver  of  the  lien 
given  by  the  statute,  unless  an  intention  to  relinquish  such  right 
is  unmistakably  manifested ;  (6)  that  the  lien  given  for  wages 
does  not  include  interest  which  has  accrued  thereon  before  the 
lien  attaches ;  (7)  that  the  proving  of  a  claim  for  a  sum  in  excess 
of  the  amount  really  due  does  not  work  a  forfeiture  of  the  right 
of  lien.     Del,  L.  and  W.  R.  R.  Co.  v.  Oxford  Iron  Co.,  192 

13.  The  right  acquired  by  a  horse  railroad  company,  under  a  legisla- 

tive grant  authorizing  it  to  lay  rails  in  a  public  highway,  and  to 
run  cars  thereon,  charging  fare,  is  such  as  entitles  it  to  exclude 
from  the  habitual  and  continuous  use  of  its  tracks  all  companies 
and  persons  engaged  in  carrying  passengers  for  hire,  in  compe- 
tition with  it.     Citizens  Coach  Co.  v.  Camden  Horse  Railroad  Co.,  267 


672  INDEX.  [33  Eq. 

Corporation — Continued. 

14.  That  the  right  of  a  horse  railroad  company  is  thus  exclusive,  is  not 

inconsistent  with  the  view  that  such  a  railroad,  laid  on  a  public 
highway,  is  only  a  modification  of  tlie  public  use  to  which  the 
highway  was  originally  devoted,  and  not  an  additional  burden 
on  the  land  for  which  compensation  may  be  required.    Id.,  267 

15.  The  right  of  the  horse  railroad  company  arises  from  the  legisla- 

tive control  of  the  public  easements  of  highway.  The  legislature 
may,  when  it  deems  it  judicious  to  do  so,  grant  to  a  private  cor- 
poration some  interest  in  the  public  highway,  imposing  on  it 
a  duty  and  obligation  to  provide  for  public  travel  tiiereon  in  a 
mode  promotive  of  the  public  good.  In  such  case  the  public 
easement  remains  unchanged  in  character  or  degree.  The  pri- 
vate corporation  acquires  so  much  of  the  public  use  as  is  neces- 
sary for  the  purposes  of  its  grant,  and  otlier  public  uses  are 
limited  and  restrained  for  the  attainment  of  such  purposes.     Id.,  267 

16.  Arising  from  the  legislative  requirement  that  the  rails  siiall  be 

laid  on  the  level  of  the  highway,  and  of  a  width  corresponding 
to  the  wagon-track  established  by  law,  there  is  an  implied  per- 
mission, on  the  part  of  the  horse  railroad  company,  to  the  use  of 
the  track  by  other  vehicles  to  some  extent.  Such  permission 
does  not  emanate  from  the  company  so  as  to  be  revocable  by  it. 
It  results  from  the  nature  of  the  grant,  and  is  in  the  form  of  a 
condition  resulting  from  the  grant  and  its  acceptance.  The  use, 
however,  thus  impliedly  permitted  is  only  such  as  is  consistent 
with  the  grant  to  the  company,  and  not  destructive  of  its  pur- 
pose. Any  use  inconsistent  with  the  grant,  and  destructive  of 
its  purpose,  is  excluded.     Id.,  2fft 

See  Injunction,  1,  2;  Keceiver. 

Costs. 

1.  A  solicitor  who  is  a  party  to  a  suit  and  appears  in  his  own  behalf, 

is  entitled  to  the  allowances  made  by  the  fee  bill  for  his  services 
therein,  except  a  retaining  fee.     Flaacke  v.  Jersey  City,  57 

2.  Certain  items  of  cost  and  their  taxation  and  allowance  considered. 

Id.,  57 

3.  The  act  of  1879  (P.  L.  of  1879  p.  103}  only  applies  to  the  clerk's 

fees  on  papers  bearing  specified  endorsements,  and  not  to  afiida- 
vits  of  verification  and  schedules  attached  to  bills  or  answers.  Id.,     57 

4.  A  complainant  who  is  a  non-resident  will  not  be  required  to  give 

security  for  costs,  if  he  is  joined  with  a  resident  complainant. 
Jones  V.  Knauss,  188 

fi.  Although  the  allowance  of  the  costs,  expenses  and  counsel  fees  of 
the  caveators  against  the  probate  of  a  will  is,  by  statute,  dis- 
cretionary with  the  court,  yet,  when  there  exist  no  reasonable 
grounds  for  contesting  such  probate,  or  the  litigation  is  need- 
lessly protracted  and  expensive,  such  allowance  should  be  de- 
nied.    Mallett  V.  Bamber,  253 


6  Stew.]  INDEX.  673 

Costs —  Continued. 

6.  Costs  of  printing  a  volume  of  three  luindred  pages  of  testimony, 

nine-tenths  of  which  consisted  of  matters  entirely  irrelevant  to 
the  issue,  not  allowed  to  either  party  as  against  the  other.  Ruck- 
man  V.  Euckman,  355 

7.  In  an  exceptional  case,  when  strong  and  well-founded  doubts  exist 

as  to  the  mental  capacity  of  a  testatrix,  and  with  respect  to  the 
force  and  character  of  the  influence  under  which  the  testamentary 
act  was  performed,  the  caveators  are  entitled  to  their  costs  and 
reasonable  counsel  fees.     Eddy's  Case,  574 

See  Divorce,  11 ;  Tender. 

D. 

Debtor  and  Creditor. 

See  Executor,  13 ;  Fraud,  3;  Fraudulent  Conveyances;  Mort- 
gage, 2 ;  Parties,  3 ;  Pleading,  1. 

Dedication. 

See  Municipal  Corporation,  1. 

Delivery. 

See  Mortgage,  7. 

Demurrer. 

See  Jurisdiction,  5 ;  Pleading,  8, 5. 

Descent. 

See  Marshaling  Assets,  2 ;  Trusts,  1. 

Devise. 

1.  A  testator  gave  to  his  wife  $4,000,  "  the  same  to  be  put  at  interest  in 

some  safe  investment,  and  secured  to  her  during  her  natural 
life.''  He  also  gave  her  an  annuity  of  $400,  charged  on  his 
homestead  farm,  which  he  gave  to  his  only  child,  and  added, 
"It  is  further  my  will  that  the  said  Amy  reside  on  the  aforesaid 
farm  after  my  decease,  and  take  proper  care  of  the  same.  In 
case  they  (I  mean  Amy  and  her  husband)  should  not  see  proper 
to  move  on  the  same,  then  I  order  my  executor  to  sell  the  same 
farm  at  public  vendue  to  the  highest  bidder ;  but  there  is  nothing 
herein  contained  that  affects  the  dower  of  $400  devised  to  my 
wife  aforesaid."  Testator  died  in  1869,  and  shortly  afterwards 
Amy  and  her  husband  removed  to  the  farm  and  occupied  it  for 
two  years,  when  they  leased  it  until  1880,  and  then  returned,  and 
now  reside  thereon.— Held,  (1)  that  the  gift  of  $4,000  to  his  wife 
was  absolute ;  (2)  that  Amy's  estate  in  the  farm  was  a  fee  simple, 
chargeable  with  the  annuity  of  $400,  and  not  defeasible  on  her 
ceasing  to  reside  thereon.     Casper  v.  Walker.  So 

2.  By  a  will,  proved  in  1849,  a  testator  gave  to  his  executor  his 

43 


674  INDEX.  [33  Eq. 


Devise — Continued. 

homestead  farm  in  trust  during  the  life  of  his  daughter  (peti- 
tioner's mother),  to  receive  the  rents  and  profits,  and  to  pay 
them  to  her  for  her  separate  use,  and  to  keep  the  property  clear 
of  any  encumbrance  by  her  or  her  husband ;  and  he  gave  the 
farm,  after  her  decease,  to  such  person  or  persons  as  should  be 
her  heir  or  heirs  at  law  of  land  held  by  her  in  fee  simple.  In 
1868  the  farm  was  sold  by  order  of  this  court,  under  the  act 
authorizing  the  sale  of  lands  limited  over  to  infants  or  in  contin- 
gency, the  proceeds  paid  into  court  and  invested  for  the  benefit 
of  the  parties  interested. — Held,  that  such  proceeds  of  sale  could 
not  be  paid  over  to  her  children  and  heirs  at  law,  on  their  own 
application,  exhibiting  the  release  of  their  mother  and  her  con- 
sent thereto ;  nor  can  they  be  paid  over  until  after  her  death,  be- 
cause it  cannot  until  then  he  determined  who  are  her  heirs  at 
law.     Bartles'  Case.  4ft 

Distribution. 

1.  A  testator  directed  his  executors  to  divide  the  income  from  his  estate 

as  follows:  one-third  to  his  wife;  one-third  to  her  then  unborn  child, 
if  it  should  live,  and  the  other  third  to  his  son  Benjamin ;  that  if 
either  child  should  die  or  the  unborn  one  should  not  be  born  alive, 
the  survivor  should  receive  the  other's  share ;  that  if  both  children 
should  not  attain  twenty-one,  or  should  die  without  leaving  law- 
ful issue,  their  estates  should  go  to  testator's  brother  David's 
children,  equally ;  that  the  share  of  each  child  should  be  paid  to 
him  on  his  attaining  his  majority,  and  they  should  also  receive 
their  mother's  share  at  her  death.  Testator  died  in  1829 ;  liis 
posthumous  child  was  bom  alive,  but  died  in  infancy  in  1830 ; 
Benjamin  attained  his  majority,  and  died  in  1853,  unmarried, 
without  issue  and  intestate.  Testator's  brother  David  had  two 
children.  The  widow  died  in  1879. — JSeld,  that  David's  chil- 
dren took  the  share  left  to  the  widow,  not  under  the  will,  but  as 
next  of  kin  of  Benjamin.     Gill  v.  Roberts,  474 

2.  Where  all  of  the  next  of  kin  are  children  of  brothers  and  sisters, 

they  take  per  capita.     Wagner  v.  Sharp,  620 

See  Executors,  2. 

Divorce. 

1.  Proof  that  a  husband  and  wife  have  lived  separate,  and  that  the 

husband  has  not  supported  his  wife,  does  not  establish  willful, 
continued  and  obstinate  desertion,  so  as  to  authorize  a  divorce. 
Bourquin  v.  Bourquin,  7 

2.  The  separation  of  a  husband  and  wife,  acquiesced  in  by  the  wife, 

and  which  she  did  much  to  bring  about,  however  long  continued, 

does  not  constitute  desertion  to  authorize  a  divorce  on  her  peti- 

;  tion.     Such  a  separation,  however,  would  become  desertion  from 


6  Stew.]  INDEX.  675 

Divorce — Continued. 

the  time  the  complaining  party  makes  sincere  overtures  to  ter- 
minate it.     Hankinson  v.  Hankinson,  66 

3.  A  wife,  with  her  child,  left  her  husband,  in  1873,  owing  to  his 

utter  inability  to  maintain  them,  and  after  he  had  pledged  a 
mortgage  belonging  to  her,  and  constituting  nearly  all  of  her  sep- 
arate property,  to  secure  his  own  debt,  and  pawned  her  jewelry 
and  silver  plate.  Soon  after  she  left,  she,  by  the  advice  of  her 
relations,  declined  to  return  to  him  until  she  could  be  satisfied 
of  his  ability  to  support  her.  He  apparently  acquiesced  in  her 
living  separate  from  him  until  1878.  In  1879  she  absolutely  re- 
fused to  return  to  him. — Held,  that  her  conduct,  prior  to  1879,  if 
desertion  at  all,  was  not  obstinate,  within  the  meaning  of  the 
statute.     Belden  v.  JBelden,  94 

4.  If  a  husband  drives  his  wife  away,  or  treats  her  so  brutally  as  to 

compel  her  to'flee  for  safety,  or  is  so  cruel  and  malignant  towards 
her  as  to  show  that  he  means  to  force  her  from  his  home,  though 
she  leaves  the  matrimonial  habitation,  he,  in  law,  deserts  her. 
Skean  v.  Skean,  148 

6.  But  a  mere  failure  by  a  husband  to  furnish  his  wife  with  sufficient 
support  is  not  a  ground  of  divorce,  nor  will  he  be  considered  a 
deserter  if  she  leaves  him  for  that  cause.    Id.,  148 

6.  So  long  as  a  husband  shares  with  his  wife  whatever  means  of  sup- 

port he  may  have,  the  law  makes  it  her  duty  to  abide  with  him; 
and  if  she  leaves  him  because  he  does  not  give  her  as  much  or 
as  good  as  she  desires,  or  as  may  be  necessary,  the  law  considers 
her  a  deserter.     Id.,  148 

7.  To  establish  desertion,  three  things  must  be  proved :  first,  cessa- 

tion of  cohabitation ;  second,  an  intent  in  the  mind  of  the  de- 
fendant to  desert ;  and,  third,  that  the  desertion  was  against  the 
will  of  the  complainant.     Sergent  v.  Sergent,  204 

8.  To  constitute  desertion,  the  deserter  must  absent  himself  or  her- 

self from  the  other  party,  of  his  or  her  own  accord,  and  without 
the  consent  and  against  the  will  of  the  other.     Id.,  204 

9.  That  one  is  the  deserter  in  whose  mind  the  desire  and  intent  to 

destroy  the  marriage  relation  exist,  though  the  other  may  be  the 
one  who,  by  open  conduct,  throws  off  marital  duty  and  alle- 
giance.    Id.,  204 

10.  Where  a  wife  in  anger  told  her  husband  that  he  "  might  go  his 
way  and  she  would  go  hers,"  and  gave  otiier  evidenoe  of  her  de- 
sire that  they  should  live  separate,  but  immediately  retracted  and 
besought  him  not  to  go,  and  he,  notwithstanding  her  entreaties, 
left  her  in  a  passiop,  and,  without  any  attempt  at  reconciliation 
and  without  contributing  anything  towards  her  support  or  even 
communicating  with  her  in  any  way,  remained  away  from  her 
for  three  years,  living  all  the  time  in  the  same  county  with  her 
— Held,  that  she  was  entitled  to  a  divorce  for  desertion,    Schanck 

V.  Schanck,  363 


676  INDEX.  [33  Eq. 

Divorce — Continued. 

11.  On  an  application  for  temporary  alimony  and  counsel  fee,  in  a 
suit  for  divorce  for  extreme  cruelty,  it  was  argued  that  from  the 
statements  of  tlie  bill,  the  cruelty  complained  of  was  the  result 
of  the  husband's  insanity. — Held,  that  a  wife  is  equally  entitled 
to  protection  against  extreme  cruelty  on  the  part  of  her  husband, 
where  his  malevolence  is  the  result  of  insane  delusion,  as  where 
it  springs  from  jealousy  or  hatred.     Smith  v.  Smith,  458 

See  Evidence,  1,  2,  4. 

Dower. 

1.  On  a  sale  of  lands,  $500  were  retained  by  the  purchaser,  out  of 
the  consideration,  as  an  indemnity  against  an  alleged  right  of 
dower  in  the  premises,  and  a  bond  and  mortgage  thereon,  given 
by  him  to  the  vendor  to  secure  that  amount  and  "  lawful "  in- 
terest, the  principal  payable  only  on  the  extinguishment  of  the 
claim. — Held,  (1)  that  the  mortgage  could  be  foreclosed  for 
arrears  of  interest,  although  the  principal  had  not  become  due 
through  the  extinguishment  of  the  alleged  claim  of  dower;  (2) 
that  the  dower  claimant  could  not,  on  this  foreclosure,  although 
made  a  party  defendant,  be  required  to  litigate  her  right  to 
dower  in  the  premises.     Fa/i  Daren  v.  Dickerson,  888 

See  ExECUTOKS,  1. 

E. 

Easement. 

1.  Where  the  complainant  is  entitled  to  an  easement  of  the  flow 

of  the  waters  of  a  natural  stream  through  an  artificial  raceway, 
constructed  on  the  lands  of  the  defendant,  which  the  defendant 
has  wrongfully  interfered  with,  a  court  of  equity,  on  final  hearing, 
may,  by  a  mandatory  injunction,  compel  the  defendant  to  restore 
the  raceway  to  its  former  condition.    Johnston  v.  Hyde,  632 

2.  Where,  upon  the  construction  of  a  deed,  it  appears  to  have  been 

the  intention  of  the  parties  to  make  a  grant  of  a  certain  quantity 
of  water  measured  by  an  existing  dam  and  raceway  on  lands  of 
the  grantor,  the  grantee  is  not  bound  to  use  the  water  in  a  par- 
ticular manner,  though  it  be  mentioned  in  the  deed  that  the  water 
privileges  were  ''  for  the  purpose  of  a  saw-mill."  He  may  use  the 
water  in  a  different  manner  or  in  a  different  place,  or  increase  the 
capacity  of  the  machinery  propelled  by  it,  without  affecting  his 
rights,  provided  the  quantity  used  is  not  increased,  and  the  change 
does  not  prejudice  the  rights  of  others.     Id.,  632 

3.  Where  the  grant  is  of  a  water-power,  and  it  be  left  in  doubt 

whether  the  kind  of  mill  mentioned  indicates  the  quantity  of 
water  and  measures  the  extent  of  the  power  intended  to  be 
granted,  or  the  grant  is  of  water  to  drive  a  particular  kind  of  a 
mill,  the  former  construction  will  be  favored.     Id.,  632 


6  Stew.]  INDEX.  677 


Easement — Continued. 

4.  If  the  right  to  an  easement  of  the  flow  of  water  has  been  derived 
by  grant,  it  may  be  extingnislied  by  a  possession  of  the  servient 
tenement  adverse  to  the  easement  for  the  full  period  of  twenty 
years,  but  will  not  be  lost  by  mere  non-user.     Id.,  632 

6.  The  owner  of  an  easement  may  lose  his  right  to  it  by  acquiescence, 
as  where  lie  has  discontinued  the  use  of  the  easement  under  cir- 
cumstances indicating  his  intention  to  renounce  it,  and  the  owner 
of  the  servient  tenement,  relying  on  his  conduct,  has  been  in- 
duced to  make  expenditures  in  altering  and  improving  his  prem- 
ises, which  expenditures  would  be  rendered  useless  if  the  owner 
of  the  easement  should  resume  the  use  of  it.  Under  such  circum- 
stances in  some  cases  the  easement  has  been  considered  in  equity 
as  extinguished,  though  the  discontinuance  of  the  use  of  it  has 
been  for  a  period  of  less  than  twenty  years.  Cases  of  this  class 
depend  on  the  doctrine  of  equitable  estoppel.     Id.,  632 

6.  In  1824,  E.  was  the  owner  of  a  saw-mill  driven  by  the  waters  of  a 
natural  stream,  diverted  from  the  stream,  and  carried  to  his  mill 
by  means  of  a  dam  and  raceway  on  the  lands  of  D.  In  May,  1824, 
E.  conveyed  to  D  a  moiety  of  the  saw-mill  and  race,  together  with 
the  equal  half  part  or  moiety  of  the  water  privileges  and  water 
courses  belonging  to  said  saw-mili,  "the  dam  to  be  raised  no 
higher  than  it  now  is,  without  the  consent  of  the  parties,  and  the 
said  raceway  to  be  and  remain  as  it  now  stands."  On  the  same 
day,  D.  conveyed  to  E.  the  equal  undivided  half  part  or  moiety 
of  the  dam  and  pond  situate  on  his  lands,  with  the  one  equal 
moiety  of  water  and  water  privileges  thereto  belonging,  for  the 
purpose  of  a  saw-mill,  "the  dam  to  be  raised  no  higher  than  it 
is  at  this  time,  without  the  consent  of  the  parlies."  In  June, 
1824,  D.  conveyed  to  W.  his  moiety  of  the  saw-mill  and  the  water- 
courses, together  with  the  privilege,  for  the  said  saw-mill,  of  the 
■water,  dam  and  race  on  his  lands,  "  the  dam  to  remain  as  it  now 
stands  *  *  *  and  the  race,  dam  and  pond  to  be  and 
remain  where  it  now  stands,  and  not  to  be  altered."  In  1S35, 
W.  conveyed  to  E.  the  moiety  of  the  mill  and  water  privileges 
he  acquired  from  D.  The  complainant  and  defendant,  respec- 
tively, acquired  title  under  E.  and  D. — Held, 

(1)  That  the  grant  was  of  an  easement  of  the  right  to  the  flow  of  so 
much  of  the  waters  of  the  stream  as  the  dam  then  standing  would 
divert,  and  to  the  use  of  the  raceway  as  it  then  was,  as  the  conduit 
by  which  the  water  should  be  carried  to  the  mill,  and  also,  as  in- 
cident thereto,  the  right  to  cleanse  and  repair  the  raceway  and 
dam,  and  to  do  whatever  might  be  necessary  and  proper  to  keep 
them  in  a  condition  fit  for  the  purposes  for  which  they  were 
designed.     Id.,  632 

(2)  That  a  change  in  the  location  of  the  water-course,  and  the  sub- 
stitution of  a  box  aqueduct,  enclosed  and  covered  over,  and  of 
less  capacity  for  the  open  raceway  through  the  servient  tenement, 


678  INDEX.  [33  Eq. 

EaBement— Continued. 

was  an  injury  to  the  complainant's  easement,  for  wliich  the  com- 
plainant might  have  relief  in  equity.     Id.,  632 

7.  The  owner  of  the  dominant  tenement  has  no  property  or  rights  in 

tKe  servient  tenement  except  such  as  are  incident  to  the  enjoy- 
ment of  his  easement.  The  owner  of  the  servient  tenement  can 
do  no  act  on  iiis  lands  which  interferes  substantially  with  the 
easement,  or  with  those  rights  which  are  essential  to  the  full  en- 
joyment of  its  benefits  ;  but  the  utmost  extent  of  tlie  duty  which 
rests  upon  the  owner  of  the  servient  tenement,  is  not  to  alter  its 
condition  so  as  to  interfere  with  the  enjoyment  of  the  easement. 
How  far  the  owner  of  the  servient  tenement  is  interdicted  from 
acts  of  ownership  on  his  lands  will  depend  upon  the  nature  and 
qualities  of  the  easement.    Id.,  632 

8.  The  chancellor  decreed  that  the  complainant  was  entitled  to  an 

easement  of  an  open  raceway  through  the  defendant's  lands,  of 
a  certain  width  and  depth.  He  ordered  that  a  box  aqueduct 
placed  therein  should  be  removed,  and  the  raceway  should  be 
restored  to  its  former  condition,  and  that  the  defendant  should  be 
perpetually  enjoined  from  obstructing  the  complainant  in  the 
enjoyment  of  his  easement. — Seld,  in  aflirming  the  decree, 

(1)  That  the  decree  did  not  interdict  the  defendant  entirely  from 

acta  of  dominion  over  the  strip  of  land  on  which  the  raceway 
-was  located ;  that  the  defendant  might  throw  bridges  over  the 
raceway  to  connect  the  two  parcels  into  which  his  lands  were 
severed  by  the  raceway,  and  generally  might  exercise  over  the 
premises  such  acts  of  ownership  as  would  not  substantially  in- 
terfere with  the  complainant's  enjoyment  of  his  rights  therein ; 
and 

(2)  That  when  the  defendant  shall  have  obeyed  the  mandatory  part 
of  the  decree,  whether  the  acts  he  shall  do  in  the  future  are  an 
interference  with  the  complainant's  rights,  is  a  question  that  will 
arise  when  the  inquiry  arises  whether  the  prohibitions  of  the 
injunction  have  been  disregarded.    Id.,  632 

See  Corporation,  13-16. 

Eminent  Domain. 

1.  Where  a  statute  relating  to  drainage  authorized  the  commission- 

ers to  purchase  a  mill  property,  and  such  commissioners,  having 
previously  made  an  assessment  to  meet  the  general  expenses  of  the 
scheme,  entered  into  a  contract  to  purchase  under  a  large  penalty  ; 
and  not  being  in  funds  at  the  day  for  performance,  in  conse- 
quence of  the  non-payment,  in  part,  of  such  assessment,  advanced 
their  own  moneys  to  make  up  such  purchase-money — Held,  on 
bill  filed,  that  they  were  entitled  to  be  re-imbursed  by  an  equit- 
able enforcement  of  such  assessment.     Allen  V.  Williams,  584 

2.  When  persons  acting  for  others  under  statutory  authority  advance 


6  Stew.]  INDEX.  679 

Eminent  Domain — Continued. 

moneys  in  good  faith  and  beneficially  for  the  persons  whom  they 
represent,  re-imbursement  of  such  moneys  will,  as  a  general  rule, 
be  allowed  in  a  court  of  equity.     Id.,  584 

3.  Where  lands  are  so  taken,  and  the  duty  to  pay  an  award  therefor, 
and  the  right  of  the  owner  to  be  paid,  is  complete,  the  owner 
may  maintain  an  action  for  the  award  if  the  statute  directing 
proceedings  for  condemnation  provide  no  special  mode  of  enforc- 
ing payment.  Jersey  Oity  v.  Oardner,  622 
See  C!oBPOBATiON,  14. 

Estates. 

See  JuBiSDiCTiOK,  3. 

Estoppel. 

1.  An  account  of  an  executrix  and  her  husband,  guardian  of  the  share 
of  the  daughter  of  the  former,  was  settled  by  the  daughter  (the 
ward)  and  her  husband  thirty-four  years  before  the  filing  of  the 
bill,  which  was  by  the  daughter  (whose  husband  was  dead),  for 
an  account  of  her  share.  The  ground  relied  on  was  errors  in  the 
account  which  was  settled,  and  the  fact  that  the  daughter  was, 
when  it  was  settled,  a  minor. — Held,  that  the  claim  was  a  stale 
one,  and  that,  under  the  circumstances,  she  was  bound  by  the 
settlement,  notwithstanding  her  minority.     Wood  v.  Chetwood,  9 

See  Pleading,  9 ;  Usury,  3. 

Evidence. 

1.  The  act  of  1880  (P.  L.  of  1880 p.  52),  "that  in  all  civil  actions,  in 

any  court  of  law  or  equity  of  this  state,  any  party  thereto  may 
be  sworn  and  examined  as  a  witness,  notwithstanding  any  party 
thereto  may  sue  or  be  sued  in  a  representative  capacity ;  pro- 
vided, nevertheless,  that  this  supplement  shall  not  extend  so  as  to 
permit  testimony  to  be  given  as  to  any  transaction  with,  or  state- 
ment by  any  testator  or  intestate  represented  in  said  action," 
does  not,  by  virtue  of  its  provision  that  any  party  to  any  action 
may  be  sworn,  remove  the  prior  statutory  disqualification  of  a 
husband  or  wife,  in  a  suit  for  divorce  on  the  ground  of  adultery, 
to  testify  to  anything  except  the  fact  of  marriage.  Wells  V. 
Wells,  4 

2.  In  a  suit  by  a  husband  for  divorce  from  his  wife  on  the  ground  of 

adultery,  a  non-resident  detective  had  been  employed  by  the  hus- 
band, and  examined  by  him  in  reference  to  one  matter  only,  and 
cross-examined  by  the  wife's  counsel,  after  which  he  left  the 
state. — Held,  that  the  court  would  not  order  the  husband  to  pro- 
duce him  again  for  examination  by  the  wife  as  to  other  matters; 
nor  would  the  husband  be  ordered  to  produce  the  correspondence 
between  himself  and  such  detective,  during  the  latter's  employ- 


680  INDEX.  [33  Eq. 

Evidence — Continued. 

meat  by  the  husband,  such  letters  being  in  the  hands  of  the  de- 
tective and  not  at  all  under  the  husband's  control.     Id.,  4 

3.  Although  an  answer,  under  oath,  denying  fraud,  be  not  overcome 

by  the  testimony  of  two  witnesses,  or  what  is  equivalent  thereto, 
yet  such  answer,  if  it  contain  admissions  of  facts  from  which 
fraud  follows  as  a  natural  and  legal,  if  not  a  neeessary  and  un- 
avoidable conclusion,  does  not  disprove  such  fraud.  Hoboken 
Bank  V.  JBeckman,  53 

4.  In  a  suit   by  a  husband  for  divorce  on  the  ground  of  his  wife's 

adultery,  the  fact  that  the  alleged  paramour  of  the  wife  was 
within  reach  of  process  at  the  time  of  examining  the  witnesses, 
and  was  not  called  to  testify  on  behalf  of  the  wife's  innocence,  is 
significant,  and  corroborative  of  the  other  witnesses'  testimony 
as  to  her  guilt.     Bibby  v.  Bibby,  56 

5.  A  bond  and  mortgage  on  lands,  and  also  a  bill  of  sale  of  chattels, 

were  given  to  secure  the  payment  of  a  debt. — Held,  that  parol 
evidence  wliich  was  inconsistent  with  the  terms  of  a  contempo- 
raneous agreement  in  writing  between  the  parties,  in  regard  to 
the  disposition  of  the  mortgaged  chattels  to  pay  the  mortgage, 
was  incompetent.     Carlton  v.  Vineland_  Wine  Co.,  466 

See  Appeals,  3  ;   Cancellation,  1 ;   Costs,  6 ;  Insanity,  2 ;  Leg- 
acy, 5-8 ;  Trust,  2-A. 

Executors  and  Administrators. 

1.  Lands  of  an  insolvent  decedent  were  sold,  free  of  his  widow's 

dower,  to  pay  his  debts.  To  secure  such  dower,  the  purchaser 
gave  the  administrators  a  mortgage  for  §2,700,  the  interest 
whereof  was  payable  to  the  widow  for  life,  and  the  principal,  at 
her  death,  to  her  husband's  heirs  at  law.  The  purchaser  also 
gave  another  mortgage  on  the  premises,  prior  to  the  widow's, 
which  was  afterwards  paid  off.  The  widow's  dower  was,  in  fact, 
only  $1,700,  and  the  purchaser  afterwards  borrowed  $2,600  of  the 
complainant.  By  an  agreement  with  the  administrators,  without 
the  privity  or  consent  of  the  widow,  the  complainant's  mortgage 
was  to  be  the  first  lien  on  the  premises — the  administrators 
agreeing  with  the  lender  to  indemnify  him  against  the  widow's 
claim  to  priority ;  and  this  agreement  was  consummated  by  can- 
celing the  widow's  mortgage,  and  substituting  another  for  $1,700, 
in  lieu  of  it,  subsequent  to  complainant's. — Held,  in  a  suit  for 
foreclosure  of  the  lender's  mortgage,  that  the  rights  and  priority 
of  the  widow  were  unaffected  thereby,  but  that  relief  could  be 
obtained  by  her,  in  the  suit,  only  by  cross-bill.     Fine  v.  King,        108 

2.  An  order  of  distribution  of  an  estate  was  made  in  December,  1867. 

One  distributee  was  absent,  and,  on  the  presumption  of  bis  death, 
his  next  of  kin  applied  for  his  share,  but  the  administrator 
refused  to  pay  it  over,  and   no  compulsory  proceedings  were 


6  Stew.]  IXDEX.  681 

Executors  and  Administrators — Continued. 

taken  against  him.  The  administrator  retained  the  share  ready 
for  payment  until  April,  1S77,  when  he  deposited  it  in  a  savings 
bank,  where  it  drew  six  per  cent,  interest.  Shortly  afterwards, 
he  withdrew  it,  and  applied  it  all  to  his  own  use.  The  distributee 
appeared  in  1878,  and  in  proceedings  against  the  administrator's 
sureties — Held,  that  they  must  pay  interest  on  the  share  at  six 
per  cent.,  after  and  during  its  deposit,  and  at  seven  per  cent,  (the 
legal  rate)  from  the  time  of  its  withdrawal  until  July  4th,  1878, 
and  at  six  per  cent,  (the  legal  rate  from  that  time)  subsequently. 
Doremuis  Case,  234 

8.  An  executor  has  no  right,  without  authority  from  a  competent 
court,  to  invest  the  funds  of  the  estate  in  municipal  bonds  or 
bank  stock.     Tucker  v.  Tucker,  235 

4.  Where  commissions  are  paid  on  part  of  the  estate  at  an  interme- 

diate accounting,  commissions  can  only  be  allowed  on  the  amount 
which  comes  into  the  executor's  hands  afterwards,  and  such  com- 
missions are  calculated  as  if  the  subsequent  receipts  were  part  of 
the  prior  receipts.     Id.,  235 

5.  A  mortgagee  is  entitled  to  a  grant  of  letters  of  limited  administra- 

tion on  the  estate  of  a  deceased  subsequent  mortgagee  of  the  same 
premises,  who  was  a  non-resident,  no  administration  having  been 
taken  out  here  on  his  estate,  but  such  administration  will  be 
limited  to  the  proceedings  already  taken,  or  that  may  hereafter 
be  taken  in  the  pending  foreclosure,  or  in  any  other  supplemen- 
tary proceedings  for  relief  on  the  mortgage.     Lothrop's  Case,  246 

6.  Acts  done  by  one  of  several  executors,  which  relate  to  the  delivery, 

gift,  sale  or  release  of  the  testator's  personalty,  are  deemed  the 
acts  of  all,  and  bind  the  estate  accordingly.  3Iut.  Life  Ins.  Co.  v. 
Sturges,  323 

7.  Under  an  order  of  the  orphans  court,  an  administratrix  sold  lands 

of  her  intestate  to  pay  debts.  The  sale  was  announced  as  being 
made  free  of  encumbrances,  and  the  property  was  struck  off  at 
$2,900,  and  the  sale  confirmed  by  the  court.  Afterward,  the  pur- 
chaser refused  to  comply  with  his  bid,  because  a  sewer  assessment 
and  two  judgments  against  former  owners  of  the  premises  were 
liens  thereon.  The  assessment  was  paid  off  before,  but  the  judg- 
ments not  until  after,  the  expiration  of  the  time  for  completing 
the  sale.  The  administratrix  then  obtained  an  order  vacating 
the  confirmation  order,  re-advertised  the  property  and  tried, 
without  success,  to  sell  it  again  ;  she  also  petitioned  the  court  for 
directions  in  the  premises,  but  this  petition  was  dismissed. — Seld, 
(1)  that  she  was  not  chargeable  with  the  $2,900;  (2)  that  lier 
petition  for  directions  was  properly  dismissed.  Warner  v.  Eld- 
ridge,  511 

8.  An  executor  is  justified  in  paying  the  funeral  expenses  of  an  in- 

digent sister  of  the  testator,  for  whose  use  for  life  the  income, 


682  INDEX.  [33  Eq. 

Executors  and  Administrators — Continued. 

and,  if  necessary,  the  principal,  of  one-half  of  his  residuary  estate 
had  been  given.  In  such  case  the  funeral  expenses  are  necessa- 
ries.    Wilson  V.  Stoats,  624 

9.  An  erecutor's  investment  on  a  first  mortgage  on  lands,  worth,  at 

the  time,  one-third  more  than  the  amount  loaned,  approved, 
although  loss  to  the  estate  subsequently  happened  ;  an  invest- 
ment on  a  second  mortgage,  exceeding,  with  the  first  mortgage, 
two-thirds  of  the  value  of  the  premises,  condemned.     Id.,  524 

10.  An  executor  holding  a  bond  and  mortgage  of  one  who  makes  an 
assignment  for  the  benefit  of  his  creditors,  and  whose  estate  pays 
a  dividend,  is  in  laches  in  not  presenting  the  claim  on  the  bond 

to  the  assignee.     Id.,  524 

,11.  Semble,  an  executor  who  resells  lands  bought  in  by  him  on  fore- 
closure of  mortgages  of  the  estate,  need  not  advertise  as  on  a 
public  sale  under  the  statute.     Id.,  524 

12.  Commissions  allowed,  no  bad  faith  being  shown.     Id.,  524 

13.  Any  person  interested  in  an  estate  as  creditor,  or  otherwise,  has  a 

right  to  file  exceptions  in  the  orphans  court  to  the  account  of  a 
discharged  or  removed  administrator.  PouUon  v.  National  Bank 
of  Frenchtown,  618 

See  Assignments,  3 ;  Legacy,  2 ;  Pabtition,  1. 

F. 

Fraud. 

1.  A  willful  misrepresentation  as  to  the  income  derived  from  the 

royalty  on  a  certain  patent,  which  induced  a  land-owner  to  ex- 
change his  property  for  a  one-half  interest  in  such  royalty,  is 
sufficient  evidence  of  fraud  and  deceit  to  set  aside  the  convey- 
ance.    Crosland  V.  Hall,  111 

2.  Fraud  perpetrated  by  means  of  a  judgment  is  entitled  to  no  more 

immunity  than  a  fraud  perpetrated  by  any  other  means.  Me- 
chanics  National  Bank  v.  Burnet  Manufacturing  Company,  486 

3.  If  a  judgment,  founded  upon  a  just  debt,  is  entered   not  for  the 

purpose  of  securing  or  collecting  the  debt,  but  for  the  purpose  of 
being  used  as  a  cover,  to  protect  the  defendant's  property  from 
his  other  creditors,  the  court  will  denounce  it  as  a  fraud  and  set 
it  aside,  as  it  would  any  other  fraudulent  contrivance.    Id.,  486 

See  Evidence,  3 ;  Set-off. 

Frauds  and  Perjuries. 

1.  A  devise  of  rents  arising  out  of  the  residue  of  the  testator's  real 
estate,  which  the  executors  were  authorized  and  directed  to  sell, 
is  an  interest  in  lands  within  the  statute  of  frauds,  and  its  trans- 
fer must  be  evidenced  by  a  note  or  memorandum  signed  by  the 
party  to  be  charged  therewith.     Brown  v.  Brown,  650 


6  Stew.]  INDEX.  683 


Frauds  and  Perjuries — Continued. 

2.  The  assignment  in  this  case  cannot  be  regarded  as  the  written 
memorandum  required  by  the  statute  of  frauds,  because  it  was 
not  delivered.    Id.,  650 

Fraudulent  Conveyances. 

1.  Mortgaged  premises  were  sold,  and  a  decree  for  deficiency  taken 

against  the  mortgagor.  Thirteen  days  before  such  sale,  the 
mortgagor  conveyed  all  his  lands,  valued  at  $50,000,  to  his  two 
sons,  one  of  them  a  minor,  in  satisfaction  of  an  alleged  indebted- 
ness of  $8,000  to  them,  no  other  debts  being  shown. — Hdd, 
fraudulent  as  against  the  mortgagee.  Hoboken  Bank  for  Savings 
V.  Beckman,  53 

2.  Any  one  liable  on  a  contract,  express  or  implied,  though  only  con- 

tingently liable,  is  a  debtor,  within  the  meaning  of  the  statute  of 
frauds,  from  the  date  of  his  contract.     Schmidt  v.  Opie,  138 

3.  All  that  a  judgment  creditor  need  do,  who  seeks  the  aid  of  a  court 

of  equity  against  his  debtor's  land,  is  to  show  a  judgment  at  law 
creating  a  lien  thereon ;  but  if  he  seeks  aid  in  respect  to  his 
debtor's  personal  estate,  he  must  show  not  only  a  judgment,  but 
that  an  execution  has  been  issued.     Id.,  138 

4.  On  an  agreement  for  the  sale  of  land  being  made,  the  purchaser 

becomes,  in  equity,  the  owner  of  the  land,  and  the  vendor  becomes 
the  owner  of  the  purchase-money.     Id.,  138 

5.  If  a  mortgagor  executes  a  mortgage  for  a  fraudulent  purpose,  and 

the  mortgagee  accepts  it,  with  knowledge  of  the  mortgagor's  pur- 
pose, intending  to  aid  him  in  such  purpose,  the  mortgage  will  be 
held  void  as  to  those  who  are  defrauded  by  it,  even  if  it  is 
founded  on  a  perfect  consideration.     Id.,  138 

6.  It  is  no  objection  to  a  petitioner's  right  to  set  aside  a  voluntary 

conveyance  of  lands,  made  to  defeat  a  personal  decree  for  defi- 
ciency on  a  foreclosure,  that  at  such  foreclosure  sale  the  mort- 
gaged premises  were  bought  by  the  petitioner  (the  mortgagee) 
at  much  less  than  their  actual  value,  where  no  fraudulent  or 
inequitable  conduct  on  the  petitioner's  part  is  shown.  Bohde  v. 
Laivless,  412 

See  Assignments,  2,  3 ;  Setting  Aside  Sales,  2. 

Funeral  Expenses. 

See  Executor,  8 ;  Parent  and  Child. 

G. 

Guardian. 

1.  Upon  the  application  of  the  widow  of  a  decedent  and  of  the  guar- 
dian of  his  minor  children,  and  upon  their  promise  to  repay  him 
out  of  the  rents  of  the  property,  tlie  complainant,  in  order  to 
save  the  real  property  of  the  estate  from  a  forced  sale,  advanced 


684  INDEX.  [33  Eq. 


Guardian —  Co  nt  inued. 

money  sufficient  to  pay  those  creditors  of  the  estate  who  had 
proved  their  claims.  Afterwards,  and  upon  their  like  solicita- 
tion and  promise,  he  advanced  further  sums  of  money  to  pay  in- 
terest on  a  mortgage  on  the  property  and  to  make  necessary  re- 
pairs. Only  a  small  portion  of  such  advances  having  been 
repaid,  he  demanded  the  balance  of  the  guardian,  who  thereupon 
gave  him  a  power  of  attorney  to  collect  the  rents  and  appro- 
priate them  in  satisfaction  of  his  claims,  such  power  acknowledg- 
ing that  his  debt  was  for  money  advanced  for  the  benefit  of  the 
property,  and  to  protect  it  from  a  public  sale.  He  collected  a 
small  amount,  and  then  the  guardian,  without  assigning  any  rea- 
son, refused  to  allow  him  to  collect  any  more  rent.  The  guar- 
dian filed  an  account  in  ihe  orphans  court,  but  omitted  com- 
plainant's claim  therefrom,  and  an  exception  on  that  account  by 
the  complainant  was  dismissed.  After  demanding  payment  of 
the  widow  and  guardian,  complainant  filed  a  bill  against  them 
for  payment  of  his  claim,  and,  if  the  assets  should  be  insuffi- 
cient, tbat  the  amount  due  or  the  deficiency  might  be  charged  on 
the  lands.  On  demurrer — Held  (the  power  of  attorney  being 
still  in  existence),  that  equity  would  aid  complainant  in  obtain- 
ing payment  of  his  debt  by  the  collection  of  the  rents  under  the 
power,  tfiyil  fully  re-imbnrsed.     James  v.  Lane,  30 

2.  A  guardian  was  held  liable  for  the  am  ount  of  a  promissory  note 
given  by  him  to  his  ward's  mother,  and  after  her  death  taken  into 
his  own  custody  ostensibly  for  safe  keeping,  such  note  being 
found  after  his  death  among  his  eriects,  with  his  signature  torn 
ofl^,  and  also  for  the  proceeds  of  sale  of  certain  furniture,  which 
also  belonged  to  the  ward's  mother,  and  was  sold  at  auction  by 
him;  and  it  was  held  to  be  no  defence  that  no  administration  of 
the  mother's  estate  was  ever  taken  out ;  both  the  note  and  the 
furniture  having  been  taken  by  the  guardian,  as  such,  into  his 
possession.    McGillv.  (y  Connelly  256 

I 

H. 

High-way. 

.See  Corporation,  13-16 ;  Municipal  Cobpobation,  1. 

Horse  Railroads. 

See  Corporation,  13-16. 

Husband  and  "Wife. 

1.  A  bill  to  establish  a  resulting  trust  averred  merely  that  C.  (the 
husband)  was  married  to  K.  in  1827,  and  that  lands  were  con- 
veyed to  him  in  1831,  but  that  the  consideration  therefor  yi&» 
paid  by  the  wife  "  out  of  her  own  estate." — Hdd,  insufficient. 
The  court  cannot  infer,  from  such  averment,  that  the  wife  had  a 
separate  estate,  and  that  the  consideration  fur  such  land  was  paid 


6  Stew.]  INDEX.  685 

Husband  and  'Wife— Continued. 

therefrom,  or  for  its  benefit.  As  the  law  stood  at  her  marriage, 
her  property,  other  than  her  separate  estate,  vested  in  her  hus- 
band, and  even  if  the  money  was  her  separate  estate,  she  may 
have  given  it  to  her  husband.    Joyce  v.  Haines,  99 

2.  By  the  common  law,  when  lands  become  vested,  during  coverture, 

in  husband  and  wife,  the  husband  is  entitled  to  the  exclusive 
use  and  possession  of  them  during  their  joint  lives.     Kip  v.  Kip,  213 

3.  This  rule,  so  far  as  it  excludes  a  wife,  during  coverture,  from  the 

.enjoyment  of  property  thus  held,  was  abolished  by  the  statute  of 
1852,  securing  to  married  women  the  use  of  their  separate 
property.     Id.,  213 

See  DrvoKCE. 

I. 
Infant. 

See  Estoppel. 

Injunction. 

1.  A  foreign  corporation,  without  any  authority  whatever,  laid  a  pipe 

for  transporting  oil  on  the  bottom  of  a  navigable  river,  on  lands 
belonging  to  the  state,  and  underneath  a  draw-bridge  of  com- 
plainant. At  that  point  the  channel  was  so  deep  and  wide  as 
that  the  laying  of  the  pipe  there  would  not  interfere  with  the 
bridge.  A  preliminary  injunction  to  prevent  such  pipe-laying 
was  denied,  because,  (1)  The  pipe  had  been  laid  before  the  ap- 
plication for  the  injunction  was  made.  (2)  The  lands  where  the 
pipe  crosses  the  bridge  belong  to  the  state,  and  the  complainants 
have  no  legislative  authority  to  reclaim  them.  (3)  The  pipe,  as 
laid,  does  not  interfere  with  or  obstruct  the  maintenance  and 
operation  of  the  draw-bridge  nor  any  lawful  filling.  (4)  The 
complainants'  franchise  of  carrying  oil  is  not  exclusive,  and 
therefore  does  not  prevent  any  other  company  from  doing  so,  if 
not  in  contravention  of  the  company's  francliise,  much  less  so 
when  it  appears  the  defendants  intend  to  transport  only  their  own 
oil.     United  Co.  v.  Standard  Oil  Co.,  123 

2.  After  complainants  had  constructed  their  railroad  tracks  through 

a  city,  part  of  the  lands  which  its  tracks  traversed  was  con- 
demned  by  the   city,   in   order  to   cross   them  with  a  street. 
This  necessitated  a  bridge,  which  was  sixteen  feet  above  the 
I  tracks.     The  bridge,  although  built  by  the  company,  was  paid 

for  by  the  city.  Subsequently,  the  defendants,  by  virtue  of  a 
resolution  passed  by  the  city  authorities,  laid  a  pipe  for  trans- 
porting oil  along  and  underneath  the  surface  of  the  street,  and 
crossed  complainant's  tracks  at  and  on  a  level  with,  and  along- 
I  side  of,  the  bridge.     A  preliminary  injunction  to  prevent  such 

crossing,  applied  for  by  the  railroad  company  and  its  receiver 


686  INDEX.  [33  Eq. 

Injunction —  Continued. 

appointed  by  this  court,  was  refused,  because:  (1.)  The  pipe  had 
been  laid  before  the  application  for  the  injunction  was  made. 
(2.)  To  justify  its  allowance,  there  is  shown  no  irreparable  in- 
jury, either  from  leakage  of  the  oil  to  be  transported,  which  is 
highly  inflammable,  or  interference  with  the  elevation  of  the 
bridge,  if  complainants  desire  to  raise  it.  (3.)  The  complainants 
have  no  monopoly  in  carrying  oil,  and  hence  cannot  object  to 
lawful  competition.  (4.)  No  comtempt  towards  this  court  appears 
by  defendant's  action.     Central  R.  R.  Co.  v.  Standard  Oil  Co.,        127 

S.  If  the  equity  judge  has  allowed  an  interlocutory  injunction,  which 
afterwards  clearly  appears  to  him  to  have  been  improperly  al- 
lowed, he  may,  of  his  own  motion,  set  it  aside  at  any  time  without 
any  notice  having  been  given  of  an  application  to  dissolve.  The 
statute,  requiring  eight  days'  previous  notice  of  a  motion  to  dis- 
solve an  injunction,  has  reference  to  applications  to  dissolve 
made  by  a  party.  But,  on  appeal  from  an  order  of  dissolution, 
made  under  such  circumstances,  the  appellate  court  will  consider 
only  the  reasons  assigned  in  the  court  below,  for  its  judicial 
action.     Conover  v.  Ruckman,  303 

4.  An  injunction  will  not  be  dissolved  merely  because  the  complain- 
ant, in  his  bill,  has  unintentionally  misstated  some  of  the  facts 
on  which  his  claim  to  relief  is  founded,  such  misstatements  not 
affecting  the  merits.     Frame  v.  Freeholders  of  Warren,  464 

5..  Lands  condemned  by  a  municipal  corporation  and  in  public  use 
for  a  street  before  payment  of  award  of  damages,  will  not,  at  the 
instance  of  the  owner,  be  restrained  in  their  use  by  injunction, 
where  a  remedy  at  law  exists,  either  by  ejectment  or  by  suit  for 
the  award.    Jersey  City  v.  Gardner,  622 

See  Appeai,,  2 ;  Contract,  2 ;  Easements. 

Insanity. 

1.  When  no  fraud  is  alleged,  and  where  incapacity  is  the  ground  on 

which  a  deed  is  sought  to  be  set  aside,  the  test  is,  had  the  grantor 
sufficient  mind  to  comprehend,  in  a  reasonable  manner,  the  na- 
ture and  effect  of  what  he  was  doing?     Blakeley  v.  Blakeley,  502 

2.  A  suitor  who  seeks  to  set  aside  a  deed  on  the  ground  of  incapacity, 

must  do  something  more  than  show  insanity ;  he  must  show  that 
the  transaction  he  seeks  to  invalidate  was  affected  by  the 
grantor's  derangement.     Id.,  502 

3.  A  deed  made  by  a  person  of  non-sane  mind,  before  unsoundness  is 

established  by  inquisition,  is  not  void,  but  merely  voidable,  and 
may  be  confirmed  in  lucid  intervals  so  as  to  be  unimpeachable. 
Id.,  502 

See  Divorce,  11 ;  WrLXS. 

Insolvency. 

See  Assignments,  3 ;  Cobforation,  12. 


6  Stew.]  INDEX.  687 

Interest. 

See  CoBPORATiON,  12 ;  Dowee  ;  ExECxrrORS,  2. 


Jxirisdiction. 

1.  To  compel  the  surrender  and  cancellation  of  written  instruments, 

which  have  spent  their  force  and  are  mere  nullities,  but  which, 
left  in  an  uncanceled  state,  may  becloud  a  title,  or  be  used  for 
dishonest  purposes,  is  an  ancient  and  well-established  head  of 
equity  jurisprudence.  A  court  of  equity  will  assume  jurisdiction 
and  compel  the  surrender  of  the  instrument,  or  limit  its  use  to 
Buch  purposes  as  may  seem  to  it  to  be  equitable,  when  a  suit  at 
law  is  already  pending,  if  it  shall  appear  that  it  is  doubtful 
whether  the  instrument  may  not  be  used,  in  such  suit,  for  a  dis- 
honest or  inequitable  purpose.     Foley  v.  Kirh,  170 

2.  The  question  whether  a  deed  was  intended,  by  the  parties  thereto, 

to  operate  as  a  mortgage  or  as  an  absolute  conveyance,  is  one 
that  a  common  law  court  can  neither  hear  nor  determine.  It  is 
a  question  belonging  exclusively  to  equity  tribunals,  and  over 
which  common  law  tribunals  have  no  jurisdiction  whatever.  Id.,  170 

3.  Equity  deals  with  equitable   estates  as   though  they  were  legal 

estates.     Kip  y.  Kip,  213 

4.  The  orphans  court  has  no  power  to  relieve  a  creditor  on  the  ground 

that  his  omission  to  file  his  claim  in  due  time  arose  from  his 
mistake,  and  not  from  mere  negligence.     Ellison  v.  lAndsley,         259 

5.  On  a  bill  filed  for  the  reformation  of  the  bond  of  the  treasurer  of 

a  society,  because  seals  were  omitted  therefrom,  and  for  a  decree 
fixing  the  amount  due  thereon  from  the  treasurer  and  his  surety 
— Held,  that  while  the  bond  could  be  reformed  as  to  the  seals,  no 
decree  could  be  granted  for  the  amount  due  thereon,  because  the 
remedy  at  law  was  adequate,  and  a  demurrer  on  the  latter 
ground  was  sustainable.     Red  Jacket  Tribe  v.  Hoff,  441 

6.  Objections  which  relate  to  the  regularity  of  a  judgment  at  law, 

or  to  the  validity  of  the  instrument  upon  which  it  is  founded, 
are  not  relievable  in  equity.  Mechanics  National  Bank  v.  Burnet 
Man.  a.,  4S6 

7.  The  remedy  for  grievances  of  this  character  is  either  by  applica- 

tion to  the  court  in  which  the  judgment  is  entered,  or  by  writ  of 
error.    Id.,  486 

8.  A  judgment  at  law  can  only  be  impeached  in  a  court  of  equity  for 

fraud  in  its  concoction,  or  upon  a  purely  equitable  defence,  or 
upon  the  ground  that  a  good  defence  at  law  has  been  lost  by 
fraud,  ignorance  or  accident.     Id.,  4S6 

9.  The  claim  in  this  case  held  to  be  an  equitable  one,  and  one  which, 

being  equitable,  and  also  for  an  unliquidated  amount,  could  not 

be  enforced  by  mandamus.     Allen  v.  Williams,  i>^ 


688  INDEX.  [33  Eq. 


Jurisdiction — Continued. 

10.  Righu  which  inhere  in  the  party  seeking  aid  in  court,  must  de- 
termine the  juiistliction,  and  not  those  of  the  defendant.  Jersey 
City  V.  Gardner,  622 

L. 

Laches. 

See  Specific  Performance,  1,  2  ;   Estoppel;  Injunction,  1,  2 
Pleading,  8 ;  Setting  Aside  Sales,  3. 

Legacy. 

1.  A  parent  gave  testamentary  power  to  her  executors  to  sell  a  certain 
house  and  lot,  and  to  set  apart  $3,000  of  the  amount  derived 
therefrom  for  the  sole  and  separate  use  of  her  daughter  Julia 
(the  wife  of  C),  who  was  to  receive  the  interest  and  income 
thereof  during  her  natural  life,  and  at  her  death  it  was  to  be  paid 
to  the  persons  who  at  that  time  might  be  her  heirs  at  law  ;  and 
further  provided  that,  if  Julia  sliould  so  elect,  the  fund  might 
be  invested  in  a  house  and  lot,  which  she  might  select,  and 
which  should  be  conveyed  to  her ;  with  a  further  declaration 
that  Julia  should  enjoy  the  same  free  from  the  control  of  her 
husband.  Testatrix's  house  and  lot  have  been  sold.  Julia's 
husband  is  dead,  and  on  bill  to  compel  the  executors  to  pay  over 
to  her  absolutely  the  $3,000 — Held,  that  since  Julia  could  re- 
quire the  executors  to  purchase  a  houso  and  convey  it  to  her,  for 
her  sole  and  absolute  use  and  disposition,  she  is  entitled  to  have  the 
|3,000  paid  to  her  directly  and  absolutely.  Courter  v.  Howell,  80 
2.  A  testator  gave  the  interest  on  certain  funds,  which  were  to  be  se- 
curely invested  on  bond  and  mortgage,  to  his  wife  for  life  or 
widowhood,  for  the  support  of  herself  and  their  son,  with  a  pro- 
viso that  on  her  remarriage,  her  right  to  such  interest  should 
cease,  and  it  should  be  payable  for  the  support  of  the  son  only  ; 
and  if  she  should  remain  unmarried  until  the  son  attained  his 
majority,  he  should  be  entitled  to  one-half  of  the  income  for  his 
own  use  ;  and  that  at  her  decease  all  tne  estate  should  go  to  the 
son  absolutely,  so  soon  as  he  should  marry  or  become  of  age,  but 
if  he  should  die  without  heirs,  or  before  he  came  into  full  pos- 
session, then  over.  The  widow  and  two  others  were  appointed 
executors.  The  testator  died  in  1840,  and  his  widow,  who,  with 
one  of  the  other  appointees,  proved  the  will,  remarried  in  1847. 
In  1848,  the  executors  who  proved  the  will  filed  their  final  ac- 
count, and  invested  the  fund  as  directed  by  the  will,  until  its  re- 
payment to  the  executor  in  1873,  when  it  was  invested  in  first 
mortgage  on  city  lots,  then  worth  three  times  as  much  as  the 
fund  invested.  Afterwards,  the  mortgagor  became  insolvent, 
and  the  executor,  on  foreclosure,  was  obliged  to  buy  in  the  prop- 
erty, in  order  to  protect  the  fund.  The  son  came  of  age  in  1860. 
He  was  married  to  complainant  in  1858,  and  died  in  1864,  leav 


6  Stew.]  INDEX.  689 


Legacy — Continued. 

ing  a  child  born  of  tlie  complainant  in  1860,  who  is  still  living. 
— Held,  (1)  On  construction  of  the  will,  that  the  son  was  enti- 
tled to  the  entire  estate  on  the  remarriage  of  the  widow,  and  the 
gift  over  was  defeated  by  the  son's  leaving  lawful  issue  surviving 
at  his  death. — Held,  also,  (2)  That  the  executor's  discretion  as 
to  the  security  of  the  investment  in  1873  appearing  to  have  been 
fairly  exercised,  and  he  having  obtained  advice  from  reputable 
counsel  that  the  principal  of  the  fund  did  not  go  to  the  son  un- 
less he  survived  his  mother,  he  is  guilty  of  no  breach  of  trust, 
either  because  he  continued  to  hold  the  fund  after  the  gift  over 
was  defeated,  or  because  of  the  investment  in  1873,  and  that  the 
land  is  the  fund.     Perrine  v.  Vreeland,  102 

3.  Where  a  parent  bequeaths  a  legacy  to  a  child  it  is  understood  to 

be  a  portion,  and  if,  after  the  execution  of  the  will,  the  parent 
gives  a  sum  of  money  to  the  child,  equal  in  amount  to  the  legacy, 
•    if  it  be,  ejusdem  generis,  it  will  be  an  ademption  of  the  legacy, 
if  so  intended.     Van  Houten  v.  Post,  344 

4.  The  advancement  of  a  less  sum,  with  intent  to  go  on  the  legacy, 

will  be  an  ademption  pro  tanto.    Id.,  344 

5.  Evidence  of  parol  declarations  of  testator  of  the  fact  of  giving  the 

money  is  not  admissible,  but  such  fact  must  be  proved  by  other 
testimony.    Id.,  344 

6.  Charges  in  books,  made  by  parent  against  child,  to  show  advance- 

ments, admitted  in  evidence ;  such  testimony  having  been  so 
long  received  by  the  courts  of  this  state.    Id.,  344 

7.  The  fact  of  the  money  having  passed  from  the  parent  to  the  child 

being  proved,  it  will  be  presumed  to  be  in  satisfaction  of  the 
legacy ;  but  the  presumption  will  be  slight,  and  evidence  of 
parol  declarations  of  testator  that  he  did  not  so  intend,  and  also 
his  declarations  in  reply  thereto  that  he  did  so  intend,  are  admis- 
sible.    Id.,  344 

8.  Whether  intended  to  be  a  gift,  independent  of  the  legacy,  or  the 

payment  of  a  debt,  or  a  portion  in  ademption  of  the  legacy,  is  to 
be  decided  by  the  circumstances  and  facts  proved  in  each  case. 
Id.,  344 

9.  A  testator  gave  to  his  wife  the  use  and   income  of  his  house  and 

lands,  for  her  life,  and  directed  his  executors  to  supply  her  out 
of  his  estate  with  everything  that  she  might  need  or  desire  for 
her  comfort,  sustenance  and  happiness.  He  then  gave  a  specific 
legacy  to  S. ;  several  pecuniary  legacies  to  others,  and  devised 
his  house  and  lands,  after  his  widow's  death,  to  the  trustees  of  a 
church,  as  a  parsonage,  on  certain  conditions. — Held,  (1)  That 
the  executors  must  resort  to  the  principal  of  the  personalty,  for 
the  widow's  support,  if  the  income  thereof  be  insufficient.  (2) 
That  the  payment  of  the  general  legacies  must  be  postponed 
until  after  the  widow's  death,  and  would  be  subject  to  ratable 
44 


690  INDEX.  [33  Eq. 

Legacy — Continued. 

abatement  if  there  should  be  a  deficiency.  (3)  That  the  specific 
legacy  must  be  paid  now,  and  without  abatement.  Bonham  v. 
Sonham,  476 

10.  A  court  of  equity  will  give  effect  to  an  assignment  of  an  expected 
legacy  executed  in  the  lifetime  of  the  testator,  if  made  for  a  valu- 
able consideration.     Bacon  v.  Bonham,  614 

11.  In  such  case,  absence  of  fraud,  good  consideration  and  adequacy 

of  price,  should  be  proved,  affirmatively,  by  the  party  claiming 
the  benefit  of  the  assignment.     Id.,  614 


Lien. 

1.  A  statutory  lien  on  lands  for  annual  water-rents  cannot  be  extended 

by  construction  so  as  to  include  water  furnished  by  the  city  com- 
missioners under  a  contract  with  a  tenant  for  years  ;  and  hence  a 
Bale  of  the  premises  occupied  by  such  tenant,  for  default  in  pay- 
ing such  water-rents,  is  ultra  vires,  and  may  be  set  aside  on  appli- 
cation of  the  owner.     Carpenter  v.  Hohoken,  27 

2.  A  prior  mortgage  to  "  S.  &  Co.,  a  firm  composed  of  T.  S.  and  J. 

S.,"  will  be  postponed  to  a  subsequent  one  given  to  secure  a  loan 
made  upon  the  strength  of  an  agreement  of  J.  S.,  surviving  part- 
ner, and  one  of  the  executors  of  T.  S.,  deceased,  to  the  effect  that 
the  lender's  lien  should  be  preferred.  Mut.  Life  Ins.  Co.  v.  *Siur- 
ges,  32S 

See  Corporation,  12 ;  Fraudulent  Conveyance,  3 ;  Municipax 
Corporation,  2 ;  Partition,  1 ;  Taxes,  2. 

M. 

Marshaling  Assets. 

1.  On  marshaling  the   assets   of  both   partnership   and   individual 

estates,  under  separate  assignments  for  the  benefit  of  creditors, 
the  partnership  creditors  are  not  entitled,  after  exhausting  the 
partnership  assets,  to  resort  to  the  individual  assets  until  after 
the  individual  creditors'  claims  have  been  satisfied.  Davis  v. 
Howell,  72 

2.  An  ancestor  bought  certain  lands,  and,  by  his  deed,  assumed  to 

pay  a  mortgage  thereon,  and  its  amount  was  allowed  to  him  as  so 
much  of  the  purchase-money.  JSdd,  that  this  was  not  such  a 
personal  assumption  of  the  mortgage  as  entitled  the  heir,  to  whom 
the  premises  descended,  to  exoneration  out  of  the  personal  estate 
for  the  amount  of  the  mortgage.     Mount  v.  Van  Ness,  262 

3.  Where  there  are  three  encumbrances  on  the  same  property,  the 

first  of  which  is  entitled  to  priority  over  the  second,  but  is  sub- 
ordinate to  the  third,  which  is  subordinate  to  the  second,  they 
will  be  marshaled  as  follows :  the  third,  if  it  be  for  as  large  a  sum 
or  a  larger  sum  than  the  first,  will  be  paid  to  the  extent  of  the 


6  Stew.]  INDEX.  691 

Marshaling  Assets— Conlimced. 

sum  secured  by  the  first ;  then  the  second  encumbrance  will  be 
paid  in  full  if  the  property  is  sufficient,  and  then  tlie  residue  to 
the  third,  if  there  be  a  residue;  and  then  the  first  encumbrance 
will  come  in.  The  principle  of  Clement  v.  Kaighn,  2  McCart. 
4S,  approved  and  developed.     Hoag  v.  Sayre,  552 

4.  A  took  a  chattel  mortgage  for  $2,150  and  failed  to  record  it;  B, 
with  knowledge  of  the  first  mortgage,  took  a  second  one  for 
$1,160;  C  obtained  a  judgment  for  $3,000  on  the  same  day  with 
the  second  mortgage,  and  made  a  levy. — Held,  that  C  had  the 
first  lien  to  the  extent  of  $2,150,  the  amount  of  the  first  mort- 
gage; then  that  the  residue  of  the  judgment  and  the  second 
mortgage  should  be  paid  pari  passu,  and,  lastly,  that  the  first 
mortgage  should  come  in  for  payment.     Id.,  552 

See  Lien,  2. 

Maxims. 

Jus  dicer e,  non  dare,  187 

Omnia  pi'cesumumtur  contra  spoliatorem,  257 

Nemo  est  hceres  viventis,  47 

Vigilantihus  non  dormientibus  jura  subveniunt,  21 

Mines. 

See  Waste. 

Mortgage. 

1.  A  statute  requiring  mortgages  to  be  registered,  or  to  lose  their 

priority  as  against  subsequent  judgment-creditors,  or  bona  fide 
purchasers  or  mortgagees  of  the  same  premises,  without  notice, 
applies  to  a  mortgage  given  to  the  state.  A  suit  for  the  foreclo- 
sure of  a  mortgage  given  after,  but  registered  before,  one  given 
to  the  state  on  the  same  lands,  is  a  suit  "  arising  out  of  any  pre- 
vious lien  or  encumbrance"  (Bev.  122S),  to  which  the  state  may 
be  made  a  party,  and  have  its  rights  in  the  premises  determined. 
Clement  v.  Bartlett,  43 

2.  In  determining  the  question  whether  a  deed,  absolute  on  its  face,  ia 

what  it  purports  to  be,  or  a  mortgage,  the  fact  that  the  parties, 
after  the  execution  of  the  deed,  still  understood  that  the  relation 
of  creditor  and  debtor  continued,  in  respect  to  the  debt  on  which 
the  deed  is  founded,  must  generally  be  regarded  as  decisive  in 
showing  that  the  instrument  was  intended  to  be  a  mortgage. 
Budd  v.  Van  Orden,  143 

3.  The  only  infallible  test  of  the  value  of  a  merchantable  article  is 

what  it  is  actually  sold  for  at  a  fair  sale.     Id.,  143 

4.  A  mortgagee  in  possession,  holding  under  a  deed  absolute  on  its 

face,  who  sells  the  mortgaged  premises,  is  bound  to  account  to 
his  mortgagor  at  the  price  at  which  he  sold,  though  he  may  be 
able  to  show,  by  the  opinion  of  competent  judges,  that  such  price 
is  in  excess  of  their  market  value.    Id.,  143 


692  INDEX.  [33  Eq. 

Mortgage — Continued. 

5.  In  nscertaining  the  sum  for  whicli  a  decree  for  deficiency  should 

be  made,  the  sum  for  which  the  mortgaged  premises  were  sold 
must,  so  long  as  the  sale  stands,  be  taken,  as  between  the  parties 
to  tjie  suit,  as  a  conclusive  test  of  the  value  of  the  mortgaged 
premises.     Snyder  v.  Blair,  208 

6.  On  such  an  inquiry,  the  court  is  not  at  liberty,  in  case  the  market 

value  of  the  premises  happens  to  exceed  the  sura  realized  at  the 
sale,  to  deduct  the  market  value  and  enter  a  decree  only  for  the 
balance  of  the  mortgage  debt.     Id.,  208 

7.  A  bond  and  mortgage  belonging  to  a  husband  were  assigned  by 

him  to  one  S.,  and  by  S.  immediately  re-assigned  to  the  wife ; 
both  assignments  were  duly  acknowledged,  and  that  to  S  recorded, 
by  the  husband's  direction,  but  the  bond  and  mortgage  and  both 
assignments  remained  in  tlie  husband's  possession,  except  once 
afterwards  when  the  mortgage  was  delivered  to  the  wife  for  a 
temporary  purpose  and  tlien  returned  by  her  to  her  husband. 
There  was  no  consideration  for  the  transfer. — Held,  that  as  there 
■was  no  delivery  of  the  bond  and  mortgage  and  assignment  to  the 
wife,  the  title  thereto  never  passed  to  or  vested  in  her.  jRuckman 
v.  Ruckman,  354 

8.  Two  mortgages  were  given,  one  in  1854  and  the  other  in  1855,  and 

duly  recorded,  to  H.,  who  died  in  1874,  and  gave  them  to  his 
daughter  M.  In  1879,  M.  asked  of  the  mortgagor,  who  then 
owned  the  mortgaged  premises,  an  acknowledgment  that  the 
mortgages,  on  which  nothing  had  ever  been  paid,  were  still  valid 
securities,  to  which  the  mortgagor  agreed,  and,  in  the  presence 
of  a  witness,  signed  such  an  acknowledgment,  endorsed  on  each 
mortgage.  Afterwards  the  mortgages  were  assigned  by  M.  to  the 
complainant,  who  sent  them  to  the  mortgagor  to  obtain  his 
admission  as  to  the  genuineness  of  his  signature  (his  mark),  and 
the  mortgagor  tlius  obtained  possession  of  them,  and  ever  after 
professed  to  be  unable  to  find  or  produce  them. — Held,  that  the 
acknowledgment  destroyed  the  presumption  of  payment  from 
lapse  of  time  as  to  the  mortgagor,  and  that,  as  to  a  second  mortga- 
gee— such  mortgagee  had  such  constructive  notice  from  the  record, 
where  the  mortgage  was  uncanceled,  as  to  put  him  on  inquiry, 
and  that  the  proof  in  the  case  showed,  outside  of  the  acknowledg- 
ment, that  tlie  mortgages  had  never  been  paid.  Murphy  v. 
Coates,  424 

9.  A  bona  fide  release  of  an  assumption  of  a  mortgage  was  verbally 

agreed  upon  before  suit  brougiit  to  foreclose  the  mortgage,  but 
the  release  was  not  executed  until  after  suit  brought.  AVithout 
knowledge  of  the  existence  of  the  suit,  it  was  executed  and  the 
consideration  paid. — Held,  to  discharge  the  assumption.  G'Neill 
v.  Ckirh,  444 

10.  Where  a  person  took  an  absolute  conveyance,  but  which  was,  in 


6  Stew.]  INDEX.  693 

Mortgage — Continued. 

point  of  fact,  a  mortgage,  and  sold  the  premises  as  his  own,  repu- 
diating the  inteiest  of  the  grantor,  and  took  a  mortgage  for  part 
of  the  consideration  money — Held,  that  it  was  not  inequitable  to 
charge  him,  in  his  accounts  with  the  grantor,  with  the  amount  of 
the  money  secured  by  the  mortgage  taken  by  him,  as  so  much 
cash  in  hand.      Van  Orden  v.  Budd,  5G4 

See  Agent,  2 ;  Dower  ;  Evidence,  5 ;  Executors,  5 ;  Jurisdic- 
tion, 2 ;  Marshaling  Assets,  2 ;  Parties,  2 ;  Set-Off  ;  Us- 
ury ;  Constitution,  2 ;  Municipal  Corporations,  2 ;  Trusts, 
3. 

Municipal  Corporation. 

1.  Complainant  moved  back  a  fence  along  a  public  street,  and  threw 

out  a  strip  of  land  six  feet  in  width,  thereby  rendering  the  street 
more  dangerous  for  travel,  by  throwing  a  ditch  running  along 
the  fence  nearer  the  centre  of  the  street.  Thereupon  the  street 
commissioners  began  to  cut  away  part  of  the  strip  of  land,  in 
order  to  alter  the  ditch  and  render  the  passage  of  the  street 
safer. — Held,  that  complainant  could  not  enjoin  the  acts  of  the 
commissioners  in  that  matter,  because  (1)  if  he  had  dedicated  the 
strip  of  land,  the  commissioners  had  authority  (under  the  act  for 
"the  improvement  of  Somervilie")  to  improve  it;  and  (2)  if  he 
had  not  dedicated  it,  such  injury  was  not  irreparable,  and  he 
;  could  obtain  adequate  redress  at  law. — Held,  also,  that  since  such 

'  commissioners  had  power  to  remove  encroachments  on  highways 

only  by  resolution  or  ordinance,  their  threatened  removal  of 
complainant's  fence  so  as  to  add  to  such  highway  an  additional 
strip  of  land  from  five  to  nine  feet  wide  because  of  an  alleged  en- 
croachment to  that  extent,  without  any  official  direction  by  res- 
olution or  ordinance,  and  without  first  ascertaining  whether  there 
was  an  actual  encroachment,  the  complainant  and  his  grantors 
having  been  in  quiet  possession  of  the  premises  for  thirty  years, 
might  be  enjoined.     Doughty  v.  Somervilie,  1 

2.  Under  the  charter  of  the  city  of  Eahway,  adopted  in  1865,  the 

lien  of  the  city  for  ordinary  municipal  taxes  and  for  assessments 
for  street  improvements,  is  prior  to  a  bona  fide  mortgage  on  the 
premises  made  and  registered  before  the  levy  or  assessment. 
Thompson  v.  Thorp,  401 

3.  The  supplement  to  the  charter  of  the  city  of  Newark,  framed  April 

15th,  1S6S  (P.  L.  of  lS68p.  1002),  construed,  and  held  to  be 
constitutional.     Smith  v.  Neivark,  545 

See  Injunction,  2 ;  Parties,  1 ;  Pleading,  2. 

N. 

Notice. 

See  Injunction,  3 ;  Mortgage,  8. 


694  INDEX.  [33  Eq. 

O. 
Orphans  Court. 

See  ExEcxjTORs,  13;  Jurisdiction,  4;  Practice,  2. 

Parent  and  Child. 

1.  Where  appellant  took  into  his  own  family  an  orphan,  and  educated 
and  supported  her  until  she  was  sixteen  years  old,  when  she 
went  elsewhere  to  work,  and  received  her  own  earnings  for  a 
time,  but  becoming  sick  she  returned — Held,  that  appellant  was 
entitled  to  recover  from  her  estate  the  expenses  of  iier  last  illness 
and  funeral.  Aliter,  as  to  clothing  and  board  furnished.  Sehaedd 
V.  Reibolt,  634 

See  Legacy,  3-8. 

P. 

Parties. 

1.  Where  the  authority  of  commissioners  is  terminated  by  their  as- 

sessment and  return  to  the  common  council,  they  are  unnecessary 
parties  to  a  suit  to  set  aside  a  sale  of  lands  ordered  by  the  com- 
mon council  and  predicated  on  their  proceedings.  Carpenter  v. 
Hohoken,  27 

2.  The  omission  of  the  assignor  as  a  party  to  a  foreclosure  by  the 

complainant  (who  held  the  mortgage  as  collateral),  no  objection 
on  that  ground  being  raised  by  the  answer,  and  no  necessity  for 
hia  being  made  a  party  appearing,  could  not  be  set  up  at  the 
hearing.    Stevens  v.  Reeves,  427 

3.  A  defendant  to  a  creditor's  bill,  after  having  been  admitted  as  a 

co-complainant,  may  have  the  conduct  of  the  cause  committed  to 
himself,  on  the  ground  of  great  delay  on  complainant's  part,  and 
on  terms  as  to  indemnifying  complainant  against  future  costs  in 
the  cause.     Thompson  v.  Fisler,  4S0 

4.  A  party  who,  having  acquired  an  interest  during  the  pendency  of 

the  suit,  applies,  under  the  chancery  act,  to  be  made  a  party  in 
order  to  move  to  open  the  decree,  must  present,  in  his  petition,  a 
case  of  substantial  equity.     Id.,  480 

5.  Claiming  in  the  conrt  below  the  right  to  be  let  in  as  a  party  for  a 

specified  purpose,  he  cannot  object,  on  appeal,  to  the  order  re- 
fusing his  admission,  that  he  had  the  right  to  be  Joined  to  the 
suit  for  another  purpose.    Davis  v.  Sullivan,  569 

iSee  Agent,  1;  Appeal,  1;  Contract,  1;  Dower;  Mortgage,  1. 

Partition. 

1.  A  testator  gave  his  homestead  farm  to  three  of  his  children  equally, 
and  further  gave  legacies  to  his  widow  in  lieu  of  her  dower,  "  se- 
cured on  good  freehold  security,  and  the  interest  thereof  paid 
half-yearly  to  her ; "   and  also  the  interest  on   a  legacy  to  a 


6  Stew.]  INDEX.  695 

Partition —  Continued. 

daughter  for  life.  He  then,  after  the  payment  or  securing  of  the 
above-named  legacies,  gave  all  the  residue  of  his  estate,  including 
the  remaindere  of  the  legacies,  to  the  three  first-named  children. 
One  of  them  and  a  person  not  of  the  family  were  the  executors. 
They  had  never  filed  any  account.  On  a  bill  for  a  partition  of 
the  farm  by  such  executor — JEeld,  (1)  that  the  legacies  were 
charged  on  the  whole  farm,  and  the  amount  due  thereon  ought 
to  be  ascertained  before  a  sale  was  ordered  on  partition ;  (2)  that 
the  complainant,  who,  by  purchase  from  his  brother,  since  tes- 
tator's death,  had  acquired  another  third  of  the  farm,  and  had 
occupied  it  since  then,  could  not  be  called  to  account  by  the  de- 
fendant, for  the  one-third  of  tlie  proceeds  of  the  farm  during  his 
occupancy,  without  a  cross-bill ;  (3)  that  since  the  amount  of  the 
personal  estate,  and  the  extent  of  the  deficiency  thereof  to  satisfy 
the  debts  and  legacies,  did  not  appear,  a  sale  would  not  be 
ordered  until  after  the  executors  have  settled  their  account  in 
the  orphans  court.     Adams  v.  Beldeman,  77 

2.  Complainants  bought  lands  adjoining  their  factories  in  1879.  The 
title  to  an  interest  therein  (supposed  to  be  one-sixth)  w;is  in  some 
doubt,  but  no  claimant  therefor  had  appeared  since  1846,  and 
they  were  assured  that  their  title  to  the  whole  was  good.  Im 
order  to  fortify  their  title,  they  took  a  transfer  of  a  decla- 
ration of  sale  of  the  premises  for  taxes,  made  in  1869.  After- 
wards they  contracted  for  the  erection  of  buildings  and  ma- 
chinery on  the  lands,  to  be  used  in  connection  with  their  other 
works,  and  erected  the  buildings  thereon  accordingly.  On  a  bill 
quia  timet,  filed  by  them  to  quiet  their  title  to  the  before-men- 
tioned interest,  certain  claimants  appeared,  and  the  proceedings 
in  that  suit  were  dismissed  as  to  them.  On  a  bill  for  partition — 
Hdd,  that  the  circumstances  of  the  case  were  not  such  as  to  de- 
prive complainants  of  the  right  to  equitable  partition  between 
them  and  the  owners  of  the  interest.     Atha  v.  JeweU,  417 

See  Setting  Aside  Sales,  3. 

Partnership. 

See  Lien,  2 ;  Marshaling  Assets,  1 ;  Usury,  4. 

Payment. 

See  Agent,  2 ;  Mortgage,  8. 

Pleading. 

1.  To  a  judgment-creditor's  bill  to  set  aside  a  conveyance  of  lands, 
alleged  to  be  fraudulent  as  against  such  creditor,  to  which  the 
grantor  (the  debtor),  his  wife  and  their  grantee  were  made  de- 
fendants, the  wife  did  not  demur,  as  she  might  have  done,  but 
filed  a  plea  setting  forth  a  sheriff's  sale  and  conveyance  of  the 


696  INDEX.  [33  Eq. 

Pleading — Continued. 

piemises  to  her,  under  an  execution  issued  out  of  this  court 
against  her  husband  and  another,  before  the  alleged  fraudulent 
conveyance. — Held,  on  argument  of  the  plea,  tliat  it  is  not  good, 
because  it  does  not  set  out  any  order  or  decree  on  which  the  ex- 
ecution issued.     Wesling  v.  Schrass,  42 

2.  Where,  on  a  bill  to  remove  cloud  from  title,  arising  from  a  mu- 

nicipal assessment  and  sale  thereunder,  it  was  averred  merely 
that  the  city  was  made  a  party  to  a  suit  for  foreclosure  of  a  mort- 
gage on  the  premises,  and  a  decree  obtained  therein,  and  the 
premises  sold — Meld,  on  demurrer,  that  such  decree  and  pro- 
ceedings do  not  bar  the  city  from  selling  such  premises  under  a 
valid  assessment,  where  it  is  not  alleged  that  such  mortgage  was 
prior  to  the  assessment,  or  that  the  assessment  was  attacked  or 
called  in  question  in  the  foreclosure  suit,  or  the  city  called  on  to 
redeem  because  the  assessment  may  have  been  paramount  to  the 
mortgage.     Dickinson  v.  Trenton,  63 

3.  In  1868  and  1869  the  New  Jersey  Western  Eailroad  Cbmpany, 

acting  under  legislative  authority,  constructed  parts  of  a  railroad 
in  this  state,  and  tlie  complainants  and  others  subscribed  and 
paid  for  its  stock.  In  1870  it  was  consolidated  with  other  rail- 
roads, built  or  to  be  built,  by  an  act  authorizing  compensation  to 
such  stockholders  of  the  New  Jersey  Western  as  were  dissatis- 
fied therewith.  A  mortgage,  covering  all  the  property  of  the 
consolidated  roads,  was  given,  and  the  legality  of  the  consolida- 
tion recognized  by  subsequent  legislation.  Against  some  of  the 
defendants  there  appeared  to  be  some  grounds  for  applying  for 
relief. — Held,  that  it  cannot  be  satisfactorily  determined,  on  the 
statements  of  the  bill,  whether  the  complainants  have,  by  acqui- 
escence, lost  their  rights  as  stockholders,  and  the  demurrer, 
being  too  general,  was  overruled.  Hoxsey  et  al.  v.  New  Jersey 
Midland  Railway  Co.,  119 

4.  A  material  and  controlling  fact,  which  is  clearly  and  fully  averred 

in  the  bill  and  not  denied  or  alluded  to  in  the  answer,  must  be 
taken  as  confessed.    Pumell  v.  Boyd,  190 

5.  A  bill  which  fails  to  make  a  case,  which  if  omitted  or  proved  will 

entitle  the  complainant  to  a  decree,  must  be  held  bad  on  general 
demurrer.     Kip  v.  Kip,  213 

6.  In  equity  pleadings,  such  degree  of  certainty  should  be  adopted  as 

will  give  the  opposite  party  full  information  of  the  case  he  is 
called  upon  to  meet.     Id.,  213 

7.  At  or  after  final  hearing,  it  is  too  late  to  object  to  mere  want  of 

precision  in  the  bill.     Id.,  213 

8.  A  bill  alleging  that  a  contract  about  a  mortgage  given  to  S.  &  Co., 

was  made  by  that  firm  or  their  survivors  and  legal  representa- 
tives, and  setting  out  who  are  the  surviving  partner  and  leading 


6  Stew.]  INDEX.  697 

Pleading — Continued. 

representatives  of  the  deceased,  and  making  them  defendants,  is 
•    not  so  vague  as  to  justify  the  vacation  of  a  decree  based  upon  the 
contract,  especially  after  the  decree  has  been  executed.     Mutual 
Life  Ins.  Co.  v.  Sturges,  328 

9.  Where  a  bill  alleged  that  a  deed  was  given  merely  to  secure  a 
debt,  and  the  answers  admitted  that  the  grantors  made  a  certain 
deed  in  writing,  of  such  date  and  of  such  purport  and  effect  as 
in  the  bill  mentioned  and  set  forth — Held,  not  to  be  such  an  ad- 
mission of  the  nature  and  effect  of  the  deed  as  to  preclude  all 
inquiry  on  the  subject.     Brown  v.  Balen,  469 

See  Executors,  1 ;  Husband  and  Wife,  1 ;  Injunction,  4 ;  Pab- 
TiTiON,  1 ;  Setting  Aside  Sales,  3. 

Possession. 

See  Guardian,  2 ;  Husband  and  Wife,  2,  3 ;  Mortgage,  4, 10. 

Post  Office. 

See  Assignment,  1. 

Powers. 

See  Corporation,  4-6 ;  Trusts,  5. 

Practice. 

1.  A  bill  may  be  dismissed  at  the  hearing,  without  reference,  if,  on 

the  pleadings  and  proofs,  the  court  can  then  decide  the  question. 
Tillotson  V.  Gesner,  313 

2.  Where  a  contest  over  the  probate  of  a  will  has  been  duly  certi- 

fied into  the  circuit  court,  and  the  proceedings  there  appear  to 
have  been  regular,  and  the  verdict  of  the  jury  properly  certified 
into  the  orphans  court  and  a  decree  in  conformity  with  the  ver- 
dict entered,  objections  addressed  to  the  discretion  of  the  circuit 
judge  and  overruled  by  him,  or  objections  which,  if  raised  at  all, 
ought  to  have  been  raised  in  the  circuit,  are  no  ground  for  re- 
versing the  decree  of  the  orphans  court.  ToumaTis  v.  Petty,  532 
See  Executors,  7 ;  Injunction,  3 ;  Setting  Aside  Sales,  1 ; 
Usury,  2 ;  Parties,  3. 

Prerogative. 

See  Mortgage,  1. 

Presumption. 

See  Cancellation,  2 ;  Legacy,  7 ;  Mortgage,  8. 


Quia  Timet. 

See  Pleading,  2. 


698  INDEX.  [33  Eq. 

R 

Railroads. 

See  Constitution,  1 ;  Cobpobation,  13-16. 

Ratification. 

See  Insanity,  3. 

Receiver. 

1.  Exceptions  to  a  master's  report  on  the  accounts  of  a  receiver  ap- 
pointed by  this  court,  involving  liis  management  and  disposal  of 
the  trust  property,  and  the  amount  of  his  compensation,  consid- 
ered and  overruled.      Woolsey  v.  Cummings  Car  Works,  432 

See  CoBPOEATiON,  1-3. 

Reformation  of  Instruments. 

1.  Deed  reformed  by  striking  out  an  assumption  of  a  mortgage  in- 

serted through  the  mistake  of  the  scrivener,  and  accepted  by  the 
grantee  in  ignorance  thereof.     O'Neill  v.  Clark,  444 

2.  Complainant  held  a  mortgage  on  an  undivided  two-thirds  interest 

in  certain  lands,  to  secure  debts  owing  to  him  by  the  two  hold- 
ers of  that  interest.  To  induce  the  owner  of  the  remaining  third 
•  to  join  in  an  absolute  conveyance  of  the  premises  to  him,  he 
agreed  to  personally  assume  two  prior  mortgages  thereon. — Hdd, 
that  he  could  not  afterwards  have  such  assumption  expunged 
from  his  deed,  on  the  ground  of  fraud  or  mistake,  and  have  such 
deed  declared  to  be  a  mere  security  for  the  payment  of  the  debts 
of  the  two  grantors.     Brown  v.  Balen,  469 

See  JimiSDiCTiON,  5. 

Rules. 

148  and  149,  374 

s. 

Sale  of  Chattels. 

See  Executors,  6 ;  Mortgage,  3. 

Sale  of  Lands. 

1.  A  sale  under  a  decree  obtained  in  this  court  cannot  be  attacked 
collaterally  by  setting  up  that  the  solicitor  who  acknowledged 
service  of  the  subpoena  on  the  party  affected  by  it  in  the  suit  in 
■which  the  decree  was  made  had  no  authority  to  do  so,  nor  that 
the  ticket  accompanying  the  subpoena  did  not  apprise  such  party 
of  the  ground  on  which  he  was  made  defendant  to  the  suit. 
Dickinson  v.  Trenton,  63 

Bee  Executors,  7,  11 ;   Fraudulent  Conveyance,  6 ;   Usury,  5. 


6  Stew.]  INDEX.  699 

Setting  Aside  Sales. 

1.  A  sale  under  a  decree  in  chancery  may  be  set  aside,  even  after 

deed  delivered,  by  an  order  made  in  the  original  cause,  either 
for  impropriety  in  the  sale,  or  for  the  purpose  of  letting  in  a  de- 
fence to  the  action.     Mut.  Life  Ins.  Co.  v.  Sturges,  328 

2.  A  judgment  creditor  may  set  aside  a  sheriff's  sale  of  mortgaged 

premises  when  the  mortgage  was  fraudulently  given  by  the  judg- 
ment debtor  to  protect  his  property,  for  an  amount  greater  than 
he  owed,  and  the  creditor  was  deterred  from  bidding  at  the  sale, 
which  was  under  prior  judgments,  by  the  fact  that  the  amount  of 
the  fraudulent  mortgage,  with  those  judgments,  amounted  to 
more  than  the  value  of  the  premises.     Bentley  v.  Heintze,  405 

3.  A  petition  to  set  aside  a  master's  sale  in  partition  was  dismissed, 

where  an  application  to  the  master  to  adjourn  the  sale  was  made 
after  the  sale  had  begun  ;  the  price  obtained  for  the  premises  was 
satisfactory;  the  master's  discretion  as  to  selling  nine  lots  in 
gross,  fairly  exercised,  and  the  petitioner  was  in  laches  in  pre- 
senting his  petition.     Thorne  v.  Andrews,  457 

4.  A  sheriff's  sale  made  by  virtue  of  process  issuing  out  of  this  court, 

may  be  set  aside  on  petition,  and  without  bill,  even  after  the  sale 
has  been  carried  into  effect  by  the  delivery  of  a  deed.  Mut.  Life 
Ins.  Co.  V.  Goddard,  482 

5.  A  person  whose  property  has  been  sold  at  judicial  sale,  to  his 

injury,  may  always,  if  he  applies  promptly,  and  is  without  fault, 
have  the  sale  set  aside  upon  showing  that  he  was  prevented  from 
attending  the  sale  by  fraud,  mistake  or  accident.    Id.,  482 

6.  A  sale  made  in  violation  of  a  promise  to  adjourn  to  a  future  day 

will  be  set  aside.     Id.,  482 

See  Appeal,  1 ;  Lien,  1. 

Set-Oflf. 

1.  The  vendee  of  land  cannot  claim,  in  a  foreclosure  suit,  a  deduc- 

tion from  the  mortgage-money,  on  the  ground  that  his  vendor, 
who  was  not  the  mortgagor,  misstated  the  number  of  acres  of  the 
land  conveyed,  and  that  the  vendor  of  such  vendor,  who  was  the 
mortgagee  and  complainant,  when  he  sold  such  lands,  made  a 
similar  misstatement.     Davis  v.  Clark,  579 

2.  To  authorize  such  deductions,  the  mortgagee  and  the  owner  must 

be  privies  in  contract.     Id.,  579 

3.  A  sold  a  farm  to  B,  misstating  the  number  of  acres,  taking  a  mort- 

gage for  part  of  consideration.  B  sold,  making  a  similar  mis- 
statement, to  C,  who  assumed  payment  of  the  mortgage. — Held, 
on  a  foreclosure  by  A,  that  C  could  not  set  up  these  facts  in  order 
to  offset  his  damages  against  the  mortgage.     Id.,  679 

Solicitor. 

See  Costs,  1,  5,  7 ;  Sale  of  Lands. 


700  INDEX.  [33  Eq. 

Specific  Performance. 

1.  Great  delay  in  seeking  relief  is  a  good  bar  to  a  suit  for  specific 

performance.    Johnson  et  cU.  v.  Somerville,  152 

2.  Sixty  years'  delay  constitutes  a  bar.     Id.,  152 

3.  A  suitor  asking  a  court  of  equity  to  give  him  the  benefit  of  the 

exercise  of  its  discretionary  power,  must  siiow  a  good  conscience, 
good  faith  and  reasonable  diligence.    Id.,  152 

4.  Where  there  is  a  conveyance  of  land,  voluntary  on  its  face,  made 

by  a  defendant  in  a  suit  just  before  a  judgment  for  a  large  sum  is 
rendered  against  him,  which  would  be  a  lieu  on  the  land  if  such 
conveyance  had  not  been  made,  and  the  evidence  fails  to  show, 
by  strong  proof,  that  it  was  made  in  good  faith  and  for  a  valua- 
ble consideration,  the  specific  performance  of  an  agreement  with 
the  vendee  for  the  purchase  of  the  land  will  not  be  enforced. 
TiUotson  V.  Gesner,  313 

5.  If  the  title  to  land  be  doubtful,  equity  will  not  compel  the  defend- 

ant, in  a  bill  for  specific  performance,  to  expose  himself  to  the 
hazard  of  litigation.     Id.,  313 

6.  The  specific  performance  of  contracts  is  a  mode  of  redress  grounded 

upon  the  impracticability  or  inadequacy  of  legal  remedies  to 
compensate  for  the  damages  which  the  party  seeking  it  will  suflfer 
by  the  default  of  the  other  in  keeping  his  bargain.  Brown  v. 
Brown,  650 

7.  It  is  only  when  the  remedy  at  law  will  not  put  the  party  in  a 

situation  as  beneficial  to  him  as  if  the  agreement  were  speci- 
fically performed  that  equity  will  interfere.    Id.,  650 

8.  Where  jurisdiction  exists,  the  remedy  is  not  of  right ;  the  court 

holds  it  in  judicial  discretion,  controlled  by  principles  of  equity 
and  justice.     Id.,  650 

9.  The  bargain  or  promise  to  be  enforced,  whether  written  or  verbal, 

must  possess,  in  substance  and  external  form,  the  requisites  of  a 
valid  contract.    Id.,  650 

10.  It  must  have  been  completely  determined  between  the  parties, 

and  its  terms  definitely  ascertained.     Id.,  .  650 

11.  So  long  as  negotiations  are  pending  over  matters  regarded  by  the 
parties  as  material  to  the  contract,  and  until  they  are  settled, 
and  the  minds  of  the  contracting  parties  meet  upon  them,  it  is 
not  a  contract,  although,  as  to  some  matters,  they  may  be  agreed. 
Id.,  650 

12.  Where  it  was  sought  to  compel  the  specific  performance  of  a  parol 
agreement  to  assign  in  trust,  for  the  benefit  of  the  complain- 
ant and  five  other  creditors,  the  defendant's  interest  under  a 
will,  and  it  appeared  that  at  the  interview  during  which  the 
alleged  parol  agreement  was  entered  into,  the  terms  and  condi- 
tions of  the  assignment  were  in  a  measure,  but  not  entirely, 
ascertained ;  it  being  understood  at  that  lime  thai  the  assignee 


6  Stew.]  INDEX.  701 

Specific  Performance — Continued. 

was  to  pay  the  creditors  first,  and  then  reconvev  the  remainder 
to  the  assignor,  but  as  to  provision  for  the  defendant's  own  sup- 
port out  of  that  interest,  and  his  release  and  discharge  from 
those  creditors'  claims  no  agreement  was  reached  ;  and  after- 
wards the  defendant,  using  a  form  drafted  for  him  by  the  credi- 
tors, containing  such  provision,  prepared,  signed  and  sealed  an 
instrument  of  assignment,  and  at  the  instance  of  one  fif  the  credi- 
tors omitted  therefrom  all  such  provision,  but  refused  to  deliver 
the  instrument,  on  the  ground  that  such  provision  was  first  to  be 
made,  and  the  creditors  to  release  and  discharge  him  from  their 
demand — Hdd,  that  there  is  no  such  contract  established  be- 
tween the  complainants  and  defendant  as  a  court  of  equity 
can  and  will  perform  by  its  decree.     Id.,  650 

13.  In  such  case  there  was  no  delivery  of  the  deed  of  assignment, 
and,  therefore,  the  suit  cannot  be  maintained  as  a  proceeding 

to  obtain  possession  of  a  deed  or  muniment  of  title.     Id.,  650 

14.  What  acts  or  words  shall  constitute  a  delivery  must  depend 
upon  the  circumstances  of  each  case.     Id.,  650 

15.  A  specific  performance  will  not  be  decreed  unless  the  existence 

and  terms  of  the  contract  be  clearly  proved.  If  it  be  reasonably 
doubtful  whether  the  contract  was  finally  closed,  equity  will  not 
interfere.     Id.,  650 

16.  The  proposal  made  by  the  defendant  was,  as  to  all  the  creditors 

named,  an  entirety,  and  was  not  capable  of  severance.     Id.,  650 

17.  The  failure  of  a  part  of  the  creditors  to  agree  to  a  condition  em- 

bracing all  would  be  a  total,  not  a  partial,  failure  to  accept  such 
conditions.     Id.,  650 

18.  A  devise  of  rents  arising  out  of  the  residue  of  the  testator's  real 

estate,  which  the  executors  were  authorized  and  directed  to 
sell,  is  an  interest  in  lands  within  the  statute  of  frauds,  and  its 
transfer  must  be  evidenced  by  a  note  or  memorandum  signed 
by  the  party  to  be  charged  therewith.    Id.,  650 

19.  In  order  to  enforce  the  performance  of  a  contract  within  the 
statute  of  frauds,  on  the  ground  of  part  performance,  (1)  the 
parol  agreement  relied  on  must  be  certain  and  definite  in  its 
terms ;  (2)  the  acts  proved  in  part  performance  must  refer  to, 
result  from,  or  be  made  in  pursuance  of  the  agreement  proved ; 
(3)  the  agreement  must  have  been  so  far  executed  that  a  refusal 
of  full  execution  would  operate  as  a  fraud  upon  the  party,  and 
place  him  in  a  situation  which  does  not  lie  in  compensation.    Id.,  650 

20.  The  assignment  in  this  case  cannot  be  regarded  as  the  written 

memorandum  required  by  the  statute  of  frauds,  because  it  was 
not  delivered.     Id.,  650 

See  Trusts,  1 ;  Frauds  and  Perjuries. 


702  IXDEX.  [33  Eq. 

Statutes. 

1.  A  thing  which  is  within  the  intention  of  the  makers  of  a  statute,  is 
as  much  within  the  statute  as  if  it  were  within  its  letter.    Mc- 

Oregor  v.  Rome  Ins.  Co.,  181 
See  Appeai-,  3. 

Statutes  of  Great  Britain. 

22  and  23  Car.  II.,  c.  10,  621 

1  Geo.  IV.,  c.  119,  296 

7  Geo.  IV.,  c.  57,  297 

15  and  16  Vict.,  e.  86,  I  U,  247 

Statutes  of  New  Jersey  (Private). 

Camden  Horse  K,  R.  Co.,       1S66,  p.  64O,  270 

Central  K.  R.  of  N.  J.,            1847,  p.  133,  129 

Colgan,  Ann,  relief  of,            1836,  p.  320,  179 

New  Jersey  Midland  E.  R.,   1871,  p.  1030,  123 

Oxford  Iron  Co.,                      P.  L.  1859,  p.  377,  198 

Town  of  Bergen,                      P.  L.  I864,  p.  420,  627 

United  Companies  R.  R.,        1869,  p.  1026,  125 

Statutes  of  New  Jersey  (Public). 

Assignments,                            Rev.  p.  38,  §  8,  200 

Bev.  p.  37,  §  5,  261 

Bev.  p.  36,  289 

Chancery,                                Bev.  p.  117,  g  74,  391 

Bev.  p.  124,  ^  103,  463 

Bev.  p.  117,  §  41,  573 

Bev.  p.  118,  ^  76,  439,210 

Bev.  p.  120,  I  86,  307 

Corporations,                           Bev.  pp.  136,  177,  §  S,  162 

Ba>.  p.  191,  I  80,  186 

Bev.  p.  196,  I  103,  159 

Bev.  p.  195,  §  99,  161 

Bev.  p.  188,  \  63,  194 

Costs,                                       P.  L.  1879,  p.  lOS,  62 

Evidence,                                Beo.  p.  378,  §  5,  5 

P.  L.  1880,  p.  52,  5 

Mortgages,                                Bev.  p.  708,  I  32,  449 

Pev.  p.  706,  45 

P.  L.  ISSO,  p.  255,  437 

Municipal  Corporations— Bay onne,  1869,  p.  398;  187S,  p.  469,  130 

1S72,  p.  686,  131 

Hoboken,  1859,  p.  433,  28 

Newark,  1868,  p.  1002,  549 

1857,  p.  166,  550 

Rahway,  1S65,  p.  499;  1874,  p.  475,  402 

Somerville,  1863,  p.  479,  3 


6  Stew.]  INDEX.  70S 


Statutes  of  Ne-w  Jersey  (Public) — Continued. 

Orphans  Court,                        Bev.  p.  777,  §  115,  237 

Bev.  p.  781,  I  129,  250 

B^.  p.  756,  II  19,  20,  533 

Bev.  p.  775,  §  105,  621 

Passaic  Drainage,                     1868,  p.  1181,  585 

Railroads,                                 Bev.  p.  929,  §  101,  166 

Eoads,                                         P„ev.  p.  1009,  I  70,  276 

Sale  of  Infants'  Lands,            Bev.  p.  1052,  47 

Lands,                          Bev.  p.  IO4O,  531 

State,                                         Bev.  p.  1223,  45 

Taxes,                                      1879,  p.  SJfl,  416 

Title,                                       Bev.  p.  1189,  549 

Trustees,                                   Beo.  p.  1224,  i  i,  27 

Sureties. 

See  ExECTJTOES,  2. 

T. 

Taxes. 

1.  It  is  a  universal  principle  that  a  purchase,  at  a  tax  sale  by  one 

whose  duty  it  was  to  pay  the  taxes,  shall  operate  only  as  an  ex- 
tinguishment of  the  tax.  One  man  can  acquire  no  rights  against 
another  by  a  neglect  of  a  duty  which  he  owes  to  the  other.  Foley 
V.  Kirk,  171 

2.  The  provision  of  the  act  of  1879  (P.  L.  of  1879  p.  S40)  that  taxes 

thereafter  assessed  should  be  a  lien  on  the  premises  paramount 
to  any  alienation  &c.  thereof,  makes  such  lien  prior  to  that  of  a 
mortgage  on  the  lands  given  before  1879,  and  is  within  the  power 
of  the  legislature.     Lydecker  v.  Pcdisade  Land  Co.,  415 

See  Municipal  Coeporatiok,  2;  Usubt,  3. 

Tenant  for  Life. 

See  Waste. 

Tender. 

A  judgment  creditor  of  a  mortgagor,  who  had  been  made  a  party 
defendant  to  a  bill  to  foreclose  a  mortgage  (a  prior  lien  on  the 
premises),  before  answering,  and  with  intent  to  redeem  the  mort- 
gage, tendered  the  complainant  the  amount  due  thereon,  together 
with  the  accrued  interest  and  taxed  costs,  which  he,  without  ob- 
jecting to  the  amount  of  costs,  refused  to  accept. — Seld,  that  his 
conduct  was  obstructive  and  vexatious,  and  that  he  must  pay 
the  costs  of  a  cross-suit  to  redeem,  although  it  appeared  that  the 
costs  of  notice  to  an  absent  defendant  in  the  foreclosure  suit  were 
unknown  to  the  clerk,  and  had  not  been  taxed  or  tendered.  The 
judgment  creditor,  however,  was  decreed  to  pay  those  costs. 
Hendee  v.  Howe,  92 


704  INDEX.  [33  Eq. 

Time. 

See  Assignment,  1 ;  Jurisdiction,  4 ;  Laches. 

Title. 

See  Specific  Pekformance,  5 ;  Taxes,  1 ;  Trusts,  1. 

Trusts. 

1.  A  trust  to  sell  or  improve  lands ;  to  invest  and  re-invest  the  pro- 

ceeds; to  collect  rents  and  income;  to  pay  taxes,  assessments, 
commits. uiis,  and  other  annual  expenses  and  charges ;  to  pay 
over  the  net  income,  and  to  divide  the  estate,  vests  a  fee  simple 
title  in  the  designated  trustees,  not  limited  to  the  lifetime  of  the 
donor's  children,  which  trust  descends  to  the  heir  at  common 
law,  the  eldest  son  of  the  survivor  of  the  trustees,  and  his  con- 
tract to  sell  lands  of  the  estate  may  be  specifically  enforced. 
Zabriskie  v.  3IoiTis  and  Essex  R.  R.  Co.,  22 

2.  A  valid  trust  of  personal  property  may  be  created  by  mere  spoken 

words,  and  proved  by  parol  evidence.     Danser  v.  Warwick,  133 

3.  A  valid  trust  of  a  mortgage  debt  may  be  created  by  parol,  for 

though  a  trust  thus  created  will  not  pass  any  interest  in  the  land 
held  in  pledge,  yet  it  is  good  as  to  the  debt,  and  will  entitle  the 
cestui  que  trust  to  the  payment  of  his  debt  out  of  the  proceeds  of 
the  sale  of  the  land.    Id.,  133 

4.  A  resulting  trust  in  lands  claimed  from  the  payment  of  the  pur- 

chase-money thereof,  either  by  the  complainant  alone  or  in  com- 
mon with  others,  will  not  be  raised  against  the  consideration 
clause  of  the  deed,  and  after  great  delay  on  complainant's  part, 
except  by  clear  proof.     McKeovm  v.  McKeown,  384 

5.  A  trustee  was,  by  a  will,  clothed  with  extensive  discretionary  pow- 

ers, and  there  was  no  provision  for  succession  in  the  trust  in  case 
of  his  failure  to  act.  He  died. — Held,  that  this  court  would  exe- 
cute the  trust  through  a  successor  to  be  appointed  by  it,  and  by 
substituting  equitable  rules  in  the  place  of  arbitrary  power.  Wei- 
land  V.  Townsend,  393 
See  CoEPOBATioN,  7 ;  Husband  and  Wife,  1. 


u. 

Ultra  Vires. 

See  C!oBPOBATioN,  4-6 ;  Lien,  1. 

Undue  Influence. 

1.  The  question  whether  an  act  is  the  product  of  uildue  influence  or 
not,  must  always  be  largely  controlled  by  the  state  of  health  and 
condition  of  mind  of  the  person  alleged  to  have  been  unduly 
influenced.    Hay  dock  v.  Haydock,  494 


6  Stew.]  INDEX.  705 

Undue  Influence — Continued. 

2.  Whatever  destroys  free  agency,  and  constrains  a  person  to  do  what 

is  against  his  will,  and  what  he  would  not  do  if  left  to  himself,  b 
undue  influence,  whether  the  control  be  exercised  by  physical 
force,  threats,  importunity  or  any  other  species  of  mental  or 
physical  coercion.     Id,,  494 

3.  Undue  influence  is  not  measured  by  degree  or  extent,  but  by  its 

effect ;  if  it  is  sufficient  to  destroy  free  agency,  it  is  undue,  even 
if  it  is  slight.    Id.,  494 

See  Wills,  2,  4. 

Usury. 

1.  A  purchaser  of  the  mere  equity  of  redemption,  in  premises  cov- 

ered by  a  usurious  mortgage,  who  purchases  subject  to  the  lien 
of  the  mortgage,  cannot  set  up  usury  as  a  defence.  Pinnell  v. 
Boyd,  190 

2.  Uaury  may  be  set  up  by  the  owners  of  the  premises  and  by  subse- 

quent encumbrances,  under  the  petition  of  the  holder  of  a  mort- 
gage for  the  surplus  money  remaining  in  this  court  after  satisfy- 
ing prior  mortgages.    Hutchinson  v.  Abbott,  379 

5.  A  promise  by  one  of  the  mortgagors  to  the  assignee,  made  after  the 

assignment,  to  pay  the  interest  on  such  mortgage  promptly,  does 
not  estop  him  from  setting  up  usury  in  the  principal  or  in  the 
interest  previously  paid ;  nor  does  a  claim  by  one  of  the  mort- 
gagors, to  have  the  full  amount  of  such  mortgage  deducted  by 
the  assessor  from  the  taxes  on  the  premises,  amount  to  an  estop- 
pel.    Id.,  379 

4.  A  mortgage  was  given  in  1871,  to  a  partnership  firm,  payable  in 

ten  years.  In  1875  the  firm  assigned  it  to  the  complainant,  as 
collateral  security  for  their  note. — Held,  that  usury,  taken  by  the 
complainant  from  the  partners  on  their  note,  could  not  be  set  up 
as  a  defence  by  the  mortgagor  on  foreclosure.    SleveTis  v.  Beeves,    427 

6.  Where  the  mortgagor  and  the  second  mortgagee  have  a  right  to 

set  up  the  defence  of  usury  against  the  first  mortgage,  a  sheriff^ 
selling  the  land  on  foreclosure  of  the  second  mortgage,  does  not, 
by  conveying  subject  to  the  first  mortgage,  deprive  the  purchaser 
of  the  right  to  set  up  the  same  defence.  The  sheriflf  has  no 
power  to  waive  the  usury.    Pinnell  v.  Boyd,  600 


V. 

Vendor  and  Vendee. 

See  Fkaudxjlent  Conveyance,  4 ;  Set-Ofp  ;  Specific  Pebfobm- 

ANCE. 

45 


706  INDEX.  [33  Eq. 

w. 

Waiver. 

S<e  Aqknt,  1 ;  Cobpokation,  12 ;  Usuey,  3,  5. 

Waste. 

1 .  A  life  tenant  has  a  right  to  nse  a  mine  for  his  own  profit  where 

the  owner  of  the  fee,  in  his  lifetime,  opened  it,  even  though  he 
may  have  discontinued  work  upon  it  for  a  long  period  of  years. 
A  mere  cessation  of  work,  for  however  long  a  period,  will  not 
defeat  the  life  tenant's  right,  but  an  abandonment  for  a  day,  with 
an  executed  intention  to  devote  the  land  to  some  other  use, 
will  be  fatal  to  the  claim  of  the  life  estate.  Gaines  v.  Oreen  Pond 
Iron  Mining  Co.,  603 

2.  New  shafts  maybe  sunk  upon  veins  of  ore  which  had  been  opened. 

Id.,  '  •  603 

Wills. 

1.  A  testator  was  eighty-two  years  old  in  1873,  when  he  made  his  will. 

— Held,  that  if  it  be  conceded  that  he  was  miserly,  squalid,  dishon- 
est, profane  and  irascible ;  that  he  canceled  a  codicil  to  his  will 
merely  because  he  believed  the  beneficiary  named  therein,  who 
was  not  a  relation,  was  insincere  towards  him  ;  that,  in  1860,  he 
revoked  a  trust  deed  in  the  nature  of  a  testamentary  disposition 
of  his  property  (it  appearing  that  he  believed  that  he  had,  by 
its  provisions,  retained  power  to  do  so) ;  that,  in  1867,  he  re- 
voked an  absolute  gift  of  certain  stocks ;  and  that  he  gave  the 
bulk  of  his  estate  to  his  executors  in  trust  to  reduce  the  debt  in- 
curred by  the  United  States  in  subduing  the  rebellion — he  hav- 
ing no  legitimate  kindred  who  might,  by  the  creation  and  ex- 
ecution of  such  trust,  be  disinherited  or  disappointed  in  their 
natural  expectations — those  things  did  not  establish  testamentary 
incapacity.     Lewis's  Case,  219 

2.  The  evidence  in  this  case — Held,  to  show  testamentary  capacity  on 

the  part  of  a  testatrix  eighty-one  years  old,  and  that  no  undue 
influence  had  been  exerted  over  her  by  her  daughter,  with  whom 
she  and  her  husband  had  lived  for  more  than  twenty-two  years, 
although  such  daughter  received,  by  the  will,  a  iarger  share  of 
the  estate  than  her  sisters,  and  notwithstanding  such  daughter 
and  her  husband  had  received  compensation  for  taking  care  of 
testatrix's  husband,  who  died  before  testatrix,  from  his  estate. 
Rise  V.  Heath,  239 

8.  The  testamentary  capacity  of  a  testatrix  who  executed  her  will  in 
the  later  stages  of  pulmonary  consumption,  established  against 
the  hypothetical  opinions  of  experts  as  to  the  effect,  upon  the 
mind,  of  the  medicines  usually  employed  in  such  cases.  An- 
drewt^s  Case,  514 


6  Stew.]  INDEX.  707 

Wills —  Continued. 

4.  The  charge  of  undue  influence  exerted  on  testatrix  by  her  mother, 

her  sole  legatee  and  executrix,  held  not  to  be  sustained,  it  ap- 
pearing that  testatrix  had  been  obliged,  by  her  husband's  cruelty, 
to  leave  him  and  return  to  her  parent's  house ;  and  that  testa- 
trix also  desired  her  mother  to  have  the  care  and  custody  of  her 
infant,  in  preference  to  its  father.     Id.,  514 

5,  The  testamentary  capacity  of  a  testatrix  eighty-three  years  of  age 

when  her  will  was  executed,  who  mentioned  twenty  of  her  in- 
tended legatees  to  her  scrivener,  and  noted  the  omission  of„  one 
of  them  when  he  read  the  will  over  to  her,  supported  by  the  tes- 
timony of  the  surviving  attesting  witness  and  scrivener  of  hex 
will,  and  by  her  physician  and  other  witnesses,  established, 
although  her  forgetfulness  in  regard  to  some  minor  matters  was 
shown,  and  it  appeared  that  she  had  made  an  unjust  and  unfounded 
accusation  against  a  person  who,  however,  had  no  natural  claims 
upon  her  bounty.     Merrill  v.  Bush,  637 

Sec  Costs,  5-7 ;  Pkactice,  2. 

Words. 

"Exhibiting,"  Ellison  v.  Lindeley,  260 

"  Presenting,"  Id.,  260 

"  Similar  cases,"  Smith  v.  Nenoark,  661 


''B''"obO  551  693     5 


-•■  — - 


P^<>>v^mpn*»y!f!|y^;g7?^afflr. 


